Non Raceday Inquiry – Dated 23 May 2022 – Kurtis Pertab

EVIDENCE
[1] Kurtis Pertab, the Respondent is a Licensed Class B Trainer and a Registered Owner under the Rules of New Zealand Thoroughbred Racing operating at Matamata, with six horses in training and between 30 and 36 horses in his care for breaking.

[2] The Respondent faces one charge that between 13 December 2021 and 7 January 2022 at Matamata Racecourse, he attended Matamata Racecourse to work his horses on the course and failed to comply with NZTR Directive, in accordance with the Government “Covid-19 Public Health Act 2020” in breach of New Zealand Thoroughbred Racing Rule 802(1)(a) as he presented a fake vaccination pass to the Racecourse Manager.

[3] Rule 802(1)(a) provides that:
A person commits a breach who acts in contravention of or fails to comply with a provision of the Rules . . . or any policy, notice, direction, ……………. or condition ….. made or imposed under the Rules.

[4] Following a teleconference on 24 March 2022, Mr R Smith, Counsel for the Respondent confirmed that the charge was admitted and the parties agreed that the hearing as to Penalty is to be on the papers.

[5] We have considered all relevant documents including Information number A16409, the Summary of Facts and Penalty Submissions from the Applicant and Respondent.

THE NZTR DIRECTIVE, NZTR RULES OF RACING:
[6] The NZTR Directive requires Industry stakeholders and participants to comply with not only the Racing Codes Covid plans and policy, but also relevant government regulations. The Directive, since it was first promulgated has been regularly updated on the NZTR website.

[7] On 26 November 2021, New Zealand Thoroughbred Racing implemented an updated Directive under the Covid Protection Framework As follows:
8.1 Admission to Thoroughbred training centres
From midnight 12 December 2021, persons may only enter a Thoroughbred training centre (Including leased stable boxes or barns) if they have provided the Club or venue operator on at least one occasion their “My Vaccine Pass” to prove that they are double vaccinated.
8.2 Club Obligations
Each Club or operator of a public training centre must implement procedures that eliminate the risk of transmission of COVID-19 to the maximum extent possible. Without limiting this obligation, each Club or venue operator must:
(a) Develop and implement a process or register for recording the vaccination status of persons who intend regularly working or visiting the training centre.
(b) Erect appropriate signage, and on a best endeavours basis ensure that occasional workers or visitors also prove that they are vaccinated; and
(c) Clearly communicate these requirements to all track users and visitors.
8.3 Licenceholder Obligations
(a) Each Licenceholder is obligated to adhere to the vaccination requirement of any training venue that they utilise. (b) Each Licenceholder must ensure that they                and their staff, contractors or visitors to the training centre are compliant with the venue’s vaccination requirements.

[8] Furthermore, the Directive provides that all persons admitted to a racecourse for a meeting must:
• Allow their “My Vaccine Pass” to be scanned or sighted as proof that they are double vaccinated; and
• Any attempt to falsify proof of a person’s vaccination status (‘My Vaccine Pass’ or in another form) will be reported to the NZ Police and will also be treated as a             Serious Racing Offence. A false statement regarding vaccination status to NZTR, the RIB or a racing club will also be regarded as a Serious Racing Offence.

[9] In addition to the Directive (as outlined above), Section 101(1) of the Racing Rules makes clear that the Rules shall apply to all Races, Race Meetings and all matters connected with Racing, and shall apply to and be binding on (c) all Licensed Persons; and (d) any other person working in or about any racing stable or Racecourse or care, control or management of horses etc.

PENALTY PROVISIONS:
[10] Rule 803(1) provides that:
A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:
   1. be disqualified for a period not exceeding 12 months; and/or
   2. 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
  3. a fine not exceeding $20,000.00

SUMMARY OF FACTS:
[11] The Matamata Racing Club facilities are sanctioned under the Rules of Racing to hold race meetings, trials and workouts and are also used for training thoroughbred racehorses. The course Facility Manager is responsible for oversight and implementation of the Covid-19 Emergency Regulations Directive.

[12] The Respondent is a Licensed Trainer and is authorised to use the facilities to train his horses which he uses six days a week.

[13] On 31 December 2021, the course Facility Manager asked the Respondent if he was vaccinated and whether he was following the protocols and guidelines initiated by the Club to prevent the spread of Covid infection and to abide by the government orders and guidelines. The Respondent replied that he was fully vaccinated and was complying with the Rules and Guidelines.

[14] On Monday 3 January 2022, the Facility Manager, having been informed by the facility users that the Respondent was not vaccinated and that they were worried about their wellbeing, challenged the Respondent and asked for proof of vaccination and demanded to see his ‘My Vaccine Pass’. The Respondent took out his mobile phone and after scrolling through it, presented what appeared to be a ‘bona fide’ copy of his Vaccine Pass.

[15] After the receipt of further information, authorities were made aware that the Respondent had deceived the Club by presenting a ‘fake’ ‘My Vaccine Pass’.

[16] On 5 January 2022, the Facility Manager, again challenged the Respondent’s compliance with the Covid-19 Emergency Regulations. As a result, the matter was referred to a Racing Integrity Board Investigator.

[17] On Friday 7 January 2022, the Respondent was spoken to by an Investigator. He admitted creating and presenting a ‘fake’ ‘My Vaccine Pass’ and that he had not been vaccinated.

[18] In explanation the Respondent stated that “he did not have confidence that the vaccination was going to work and did not want to rush it and he just wanted to earn an income.”

[19] The Respondent apologised for his actions.

[20] The Respondent has been training for one year. He has not previously breached the Rules.

[21] The Respondent does not fully accept there was a discussion as to whether he was following the protocols and guidelines initiated by the Club to prevent the spread of Covid-19 infections and to abide by the Government orders and guidelines. He said he was riding a horse at walking pace on the racecourse at Matamata. He does however accept the Summary of Facts with that one exception, which we do not regard as material to our decision.

[22] The presentation of a fake passport is “a serious racing offence.”

RIB SUBMISSIONS:
[23] The RIB acknowledges that the risk posed to public health by persons who chose not to be vaccinated is no longer as relevant as it once was. The new Omicron variant is significantly less dangerous than that of its predecessor, ‘Delta’. With New Zealand’s high vaccination rate, it is becoming more apparent that choosing to not be vaccinated against Covid-19 is more of a health risk to the individual than those around them. However, the RIB submits that those who attend an event requiring all attendees to be vaccinated, such as a race meeting and training facilities, are entitled to expect that this requirement will be followed, reducing any potential or perceived risk. Any attempt to subvert this expectation involves a significant breach of trust of other attendees /participants.

[24] The RIB highlighted the fact that Racing has been able to continue during significant periods of the Covid-19 pandemic while many other activities including sports have not and most persons involved in the Industry appreciate this is a privilege and make the effort not to undermine this. Therefore, incidents such as this place the integrity and viability of the industry at risk.

[25] The RIB referred to the following decisions:
RIB V Swann (Mar 2022) – Licence to Train – Suspended 3 months and $1000 fine.
RIB V Keegan (Feb 2022) – Licence to train – Suspended 4 months and $4000 fine.
RIB v Hewetson (Dev 2021) – fined $2400.
 RIB V Harvey (Dec 2021) – fined $2700.

[26] There are differences between the four cases, notably both RIB v Swann and RIB v Keegan related to the presentation of false (fake) Vaccine Passes, whereas both Hewetson and Harvey related to border crossing breaches.

[27] In mitigation, the RIB acknowledges that once the Respondent sought legal representation he entered an early guilty plea and agreed to the matter to be dealt with on the papers reducing the need for a costly ‘in person’ hearing.

[28] The RIB summarised its submissions as follows:
a) The Respondent has been involved in the Racing Industry all his life and does not have any history of offending or breaching of the Rules of Racing.
b) The Respondent’s offending is slightly more serious than that of Ms Keegan in that, not only did he deliberately breach the Covid-19 protocol, but he repeatedly             attempted to mislead Mr Styles (Matamata Racecourse Manager) as to his vaccination status. First, by saying that he was vaccinated when in fact he was not               and secondly, by producing a fake ‘My Vaccine Pass’ when confronted a second time.
c) The country, including the Racing Industry, has worked extremely hard to protect New Zealanders from the worst impacts of Covid. Significant sacrifices have                 been made by individuals to protect the public and more vulnerable in our society.
d) Freedom of choice against vaccination does not mean freedom to breach the Rules and breach public trust and confidence in a system designed to protect                     New Zealanders. To attempt to circumvent the clear expectations of the Government and the Racing Industry through deception must be viewed as at the                       serious end of misconduct.
e) The vast majority of people in the Racing Industry have understood and followed the Rules, even if doing so does not always accord with their best interests.                 The Respondent’s choice to flagrantly disregard the Rules to suit his purpose is a serious blow to others within the Industry that have religiously followed the                   Rules.

[29] For these reasons, the RIB believes that the penalty should be slightly more than that of Ms Keegan. Serious consideration needs to be given to a period of suspension or disqualification considering the Respondent’s conduct was a serious breach of public trust and the trust of the racing industry.

[30] The RIB is not seeking costs in this matter.

SUBMISSION OF COUNSEL FOR THE RESPONDENT
[31] By way of background, the Respondent is a horse owner, horse breaker and Licensed Trainer based at Matamata who has worked since he was a small child in the Thoroughbred Racing Industry with his parents.

[32] We have considered the references which have been provided by six prominent individuals from all aspects of the Racing Industry, his family and a schoolteacher. It is clear that the Respondent has at a young age developed a positive reputation as a person of great integrity on a personal and professional basis with a rare work ethic preparing horses to a high standard. He is regarded as an excellent horseman and as a very promising young person for the Racing Industry who conducts himself in all aspects of his work professionally and is always respectful and well mannered.

[33] Due to matters beyond his control the Respondent’s personal circumstances changed and at the age of 20 established his own business with his mother involving horse breeding and training to provide financial assistance to members of his family in September 2021.

[34] If the Respondent’s Licence was suspended for any length of time he would be unable to continue with his business which is solely reliant on the Thoroughbred Racing Industry. He would suffer extreme hardship.

[35] An apology letter from the Respondent to NZTR has been provided.

[36] His Counsel submits that in view of the Respondent’s age and corresponding lack of wisdom, his early admission of guilt, future in the industry and the probability that a suspension will cause extreme hardship to him and his family, a substantial fine should be imposed with no suspension.

[37] In the alternative, if a suspension is imposed, it should be suspended for a period of 12 months with the proviso that the Respondent does not breach any Rules of the NZTR during that time.

[38] If a period of suspension must be imposed, it should be limited to a period of one month and a moderate fine in accordance with RIB v Hewetson be imposed.

OUTCOME
[39] As the Adjudicative Committee held in RIB v Keegan, this is a case “where a crucial document has been falsified and presented (used or “altered”) to achieve an advantage and intended to breach the Rules of Racing and to deceive those charged with administering the Rules, such behaviour clearly falls into the category of serious misconduct.

[40] All Trainers enjoy the privilege of a Trainers Licence and with that privilege goes the duty to comply with the Rules of the Profession.

[41] As a Licenceholder, the Respondent deliberately breached a Rule committing a “serious racing offence.”

[42] The RIB referred to the Appeal Tribunal’s decision in RIU v L. In particular, that the penalties are designed to punish the offender for his wrongdoing but they are not meant to be retributive making the punishment disproportionate to the offence.

[43] Importantly, in this case the Adjudicative Committee referred to the following criteria:
• The need to punish a deliberate transgression of the Rules of Racing and mark the Tribunal’s condemnation of such behaviour.
• The need to protect the profession and the public, and to promote confidence in the integrity of the profession.
• To deter not only the offender, but others in the profession who might be tempted to breach the Rule.
• In this case, as the Adjudicative Committee said in RIU v Keegan:
“There is the vital consideration that Racing only has been able to take place, in some form, if the Government conditions are met and honoured by the                           participants.
Any betrayal of the NZTR’s requirements, which is manifestly damaging the whole Industry is especially egregious.

[44] The aggravating features of the Respondent’s breach of the Rules include:
• He created a fake vaccination passport intending to use it so as to deceive others in the Code.
• The actual fraudulent use of it on 3 January 2022, to secure a fraudulent advantage.

[45] The mitigating factors relevant in the Respondent’s case are significant.
• He is a young man aged 20 years with the corresponding lack of maturity.
• Through no fault of his own, he assumed onerous financial and personal responsibilities for others and was subject to very significant stressors when he made                an error of judgment.
• His livelihood is dependent on income derived from his involvement in the Industry.
• Although he has only been licensed to train for a relatively short time, the references provided as to his character and ability are relevant.
• He admitted the breach at the first available opportunity and apologised to the NZTR.
• He has not previously incurred any breaches.
• He is genuinely remorseful.

[46] The RIB submitted the following cases as being comparable:
       RIB v Swann (Mar 2022) – Licence to Train -Suspended 3 months and $1000 fine.
       RIB v Keegan (Feb 2022) – Licence to train – Suspended 4 months and $4000 fine.
       RIB v Hewetson (Dec 2021) – fined $2400.
RIB v Harvey (Dec 2021) – fined $2700.

[47] The facts in Swann and Keegan are comparable. The circumstances of Hewetson and Harvey are quite different and are of limited value in terms of determining an appropriate penalty relative to offending and culpability. However, both highlight the relative impacts of disqualification or suspension and fine.

CONCLUSION:
[48] The RIB submits that the penalty should be slightly more than that imposed on Ms Keegan.

[49] However, the Adjudicative Committee in RIB v Keegan referred to an additional aggravating factor in Ms Keegan’s offending, in particular. Ms Keegan’s initial attempts to deflect the inquiries of the Investigator where it was not a mistake or error of judgment. Ms Keegan had also held a Trainer’s Licence for 14 years.

[50] With regard to the Respondent’s offending it is less serious than Ms Keegan’s for these reasons. In the Respondent’s case his offending was an error of judgment due to his youth, his inexperience as a Licensed Trainer and the very significant personal and financial pressures he was subject to at the time.

[51] However, as in RIB v Keegan “an order for suspension is required taking into account the interests of the profession or Racing and its continued protection, together with the need to deter other Licensees from ignoring NZTR Directives and policy and employing a fraudulent practice. The community and all who are Licenced to participate in racing should know that such behaviour cannot be minimised nor will it be tolerated.”

[52] Having regard to the submissions of the RIB and Counsel for the Respondent we take as a starting point for the suspension, a period of 3 months and a fine of $2,000.

[53] As for mitigating factors we take into account the various matters referred to in particular the Respondent’s youth, his personal circumstances, his admission of the charge, his genuine remorse and the outstanding references as to his character, ability work ethic and integrity.

[54] Taking into account the aggravating and mitigating circumstances, we allow a discount in respect of both the suspension and fine.

[55] We impose a suspension order of 2 months from the date of publication of this decision deferred for 2 weeks, to allow Mr K Pertab if he wishes, to make arrangements for another Licensed Trainer to take over training his horses.

[56] Having regard to the particular circumstances of this case, we refer Mr K Pertab and his Counsel to Rule 1106(1)(a) of the Rules of Racing.
The RIB does not seek costs which is appropriate in this case as this matter was dealt with on the papers.

[57] We make the following orders:
(a) Mr K Pertab’s Licence is suspended for 2 months commencing at 5:00 pm 2 weeks after the publication of this decision (7 June 2022) and to conclude at 5:00 pm on 7 August 2022.
(b) Mr K Pertab is fined $1,500.

DATED the 23rd Day of May 2022

JH Lovell-Smith (Chair)