Non-Raceday Inquiry – Decision dated 6 December 2021 – Mark Smolenski

ID: RIB5963

Respondent(s):
Mark John Smolenski - Trainer

Applicant:
Simon Irving, Investigator for Racing Integrity Board

Adjudicators:
Russell McKenzie

Persons Present:
Simon Irving (the Applicant) and Mark Smolenski (the Respondent)

Information Number:
A15810

Decision Type:
Race Related Charge

Charge:
Failed to Present Horse Free of Prohibited Substances

Rule(s):
1004A(2) - Prohibited substance, 1004A(4) - Prohibited substance

Plea:
Admitted

Animal Name:
SOPHIA BROMAC

Code:
Harness

Race Date:
10/10/2021

Race Club:
Methven Trotting Club

Race Location:
Orari Racecourse - Orari Station Road, Orari, 7992

Race Number:
R7

Hearing Date:
26/11/2021

Hearing Location:
Addington Raceway, Christchurch

Outcome: Proved

Penalty: Trainer Mark Smolenski fined $4,200

BACKGROUND:

Information No. A15810, filed by Investigator for the Racing Integrity Board, Mr Simon Irving, alleges that the Respondent, Mark Smolenski, as the Registered Trainer and person in charge of the horse, SOPHIA BROMAC, presented the horse for the purpose of engaging and did engage in Race 7, Methven Panel & Paint Mobile Pace, at the meeting of Methven TC held at Orari Racecourse on 10th October 2021, and failed to present the horse free of prohibited substances, namely Phenylbutazone and Oxyphenbutazone, in breach of Rule 1004A (2) and (4) of the New Zealand Rules of Harness Racing.

Mr Irving presented an Authority to Charge signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board, authorising the filing of the Information pursuant to Rule 1108 (2).

THE RULE:

Rule 1004A provides as follows:

(2)  A horse shall be presented to race free of prohibited substances.

(4)  When a horse is presented to race in contravention of sub-rule (2) . . . the trainer of the horse commits a breach of these Rules.

SUMMARY OF FACTS:

Mr Irving presented the following Summary of Facts:

1.  ­­­­­­­­­­­­­The Respondent, Mark John Smolenski, is a licensed Public Trainer under the New Zealand Rules of Harness Racing.

2.  He is 62 years old and has been a harness trainer and driver since 1984.

3.  SOPHIA BROMAC is a 3-y-o filly (He’s Watching – Life of Luxury) trained by Mr Smolenski and owned by him and Mrs C F Smolenski.

4.  The horse was correctly entered for and presented to race at the Methven TC meeting at Orari Racecourse on 10th October 2021.

5.  SOPHIA BROMAC was driven by John Dunn and won Race 7, Methven Panel & Paint Mobile Pace, 1850m, earning a stake of $5500.

6.  SOPHIA BROMAC was post-race swabbed in the presence of Mr Smolenski, who does not contest the swabbing process.

7.  On 26th October, the New Zealand Racing Laboratory Service issued a Certificate of Analysis reporting Phenylbutazone and Oxyphenbutazone were detected in the sample. The control sample was clear.

8.  Phenylbutazone, commonly known as “Bute”, is a non-steroidal, anti-inflammatory drug commonly used to treat short term pain and fever in horses. Oxyphenbutazone is a metabolite of Phenylbutazone. “Bute” can be prescribed in powder form, paste and is also injectable. It is listed in the NZEVA Veterinarian’s guide as having a “detection time” of 5 days and a “possible withholding time” of 7-plus days.

9.  Mr Smolenski was interviewed at his property in Weedons on 27th October. He stated that he had been mixing sachets of “Bute” powder to a yearling’s feed, following issues post-gelding and, with his paddock rotation, it was possible that SOPHIA BROMAC had the opportunity to eat some of the gelding’s leftover feed.

10. Mr Smolenski showed investigators a box of “Myoton” Phenylbutazone granule sachets which he had been using.

11.  Inquiries with the vet revealed that the yearling had been gelded on 1st October and conversant [sic] with Mr Smolenski’s explanation of treating the gelding seven days later when it developed an infection, revealed consistent timing with the probable contamination of SOPHIA BROMAC through consuming the gelding’s feed 1-2 days prior to the race.

12.  Betting analysis on the race revealed no anomalies, with SOPHIA BROMAC being 5/3 in the betting.

13.  Mr Smolenski has two previous prohibited substance charges from 2005 and 2011 in his 37-year training career.

SUBMISSIONS OF THE RESPONDENT:

1. Mr Smolenski said that he was “dumbfounded” to hear of the positive swab. He had worked out that it had been the result of a “feed mix-up” in the paddocks.  The horses are paddock-trained, he feeds his own horses and the feeds are made up individually and the horses fed one at a time off the feed trailer. There was no possibility that the horse had been given the wrong feed, he said.

2.   His practice is to scrub out the waterers and the feeders every Sunday. If there were any traces of feed left in a feeder, he would just tip it out onto the ground. He has since been told that this is a likely explanation for the positive swab by SOPHIA BROMAC.

3. He accepted that he had made a mistake, but he has been training horses for 40 years and this has been his practice.

4. He does not use “bute” very often, only on horses that have been operated on. He has now adopted a practice of designating a paddock for a horse that is being treated and, therefore, it will not happen again.

5.  Mr Smolenski referred to his two previous charges and distinguished the present charge as being “ very accidental”.

6.  His runners have been consistently swabbed since this incident and all have tested clear.

7.  He has considered that a third person had possibly been responsible, but he had no evidence of that. Asked by the Committee as to what security measures, if any, were in place at his stables, Mr Smolenski replied that he and his wife were there seven days a week and his house was right next to the barn, with twelve paddocks around the house.

8.  He has no staff now and does all of the work with the horses himself. He is currently working six horses.

9.  Mr Smolenski said that he was in a position to pay a fine and would prefer a fine to a suspension or disqualification.

REASON FOR DECISION:

Mr Smolenski has admitted the breach, which is found proved accordingly.

SUBMISSIONS FOR PENALTY:

Mr Irving has filed the following submissions as to penalty:

1.   The respondent, Mark John Smolenski,  is a licensed Public Trainer and Open Driver under the New Zealand Rules of Harness Racing. He is 62 years old and has held a Trainer’s Licence since 1984.

2.   He has admitted a breach of the rules in relation to racing SOPHIA BROMAC at the Methven Trotting Club meeting at Orari on 10 October 2021 while not free of a prohibited substance.

3.   The drug concerned and the details of its suspected ingestion are contained in the Summary of Facts which has been agreed.

4.   It is the RIB’s position that this matter can be dealt with by way of a monetary penalty.

5.   Mr Smolenski’s vet confirms that a yearling was gelded at the property on 1 October 2021. The same horse had an airway operation nine days earlier and was prescribed five sachets of Phenylbutazone for five days post-surgery recovery.

6.   Mr Smolenski also had an old box of “Myoton” Phenylbutazone granule sachets in his medicine cabinet which had previously been prescribed by another vet,

7.   His explanation of mixing in the sachets with the gelding’s feed when it developed complications and then rotating his horses, resulting potentially in SOPHIA BROMAC consuming leftover feed is plausible and, given the timeline, feasible.

8.   There is no evidence to suggest a deliberate intent to deceive or gain an advantage on the part of Mr Smolenski.

9.   Betting analysis of SOPHIA BROMAC’s race revealed no anomalies. Mr Smolenski did not bet on the horse.

10.  The penalties which apply to this case are detailed in Rule 1004D:

A person who commits a breach of a rule in rules 1004A, 1004B or 1004C shall be liable to:

(a)   a fine not exceeding $20,000.00; and

(b)   be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.

11.  Sentencing Principles –

–  Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense that the punishment is  disproportionate to the offence but the offender must be met with a punishment.

–  In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

–  A penalty should also reflect the disapproval of the [RIB] for the type of behaviour in question.

–  The need to rehabilitate the offender should be taken into account.

The first three principles have relevance in this case.

12.  Aggravating factors –

(A)  Mr Smolenski has two previous breaches of the Prohibited Substance Rules. The first in 2005 when he received a five-months disqualification for administration of Ranitidine. The second in 2011 when he received a $3,600 fine for a race-day administration of a non-prohibited substance Osmitrol to three horses.

(B)  Mr Smolenski has been somewhat careless in his management of the sick gelding by not ensuring its treatment was confined to prevent possible contamination  with his other racehorses.

13.  Mitigating Factors –

(A)  Mr Smolenski has been fully cooperative throughout the RIB process and has admitted the charge at the first available opportunity.

(B)  While Mr Smolenski has two previous rule breaches, they have spanned a lengthy 37-year career with HRNZ records detailing over 2,640 starts for 169 wins.

14.  The historic JCA guidelines recommend a starting point of an $8,000 fine for a first “presentation” offence. Mr Smolenski’s two previous charges were “administration” offences.

The following harness racing cases may provide assistance and guidance regarding penalty, the most recent being the most similar in circumstance:

RIU v Vince (2021) – positive to Phenylbutazone and Oxyphenbutazone at a race meeting. The source of the positive was not identified but likely to be through contamination. $3,400 fine and the horse disqualified.

RIU V Westrum (2017) – positive to Phenylbutazone and Oxyphenbutazone at a race meeting. No obvious source of the positive identified. 3rd breach within four years. $8,000 fine.

RIU v Neal & Neal (2015) – positive to Flunixine. Source identified as an administration error with the withhold time. $5,500 fine.

15.  Under Rule 1004D (2), SOPHIA BROMAC must be disqualified from the race on 10 October. Pursuant to Rule 1004E, SOPHIA BROMAC was disqualified by an Adjudicative Committee on 11 November 2021.

16.  Conclusion –

When determining penalty, the RIB submit that the Committee have regard to the purpose of the proceedings, which include: to ensure the rules are complied with, to uphold and maintain the high standards expected of trainers to prohibited substances and to protect the other participants in  racing and the betting public.

17.  The RIB is not seeking costs.

18.  Mr Irving then addressed the Committee in relation to the three previous cases that he had cited in relation to penalty. The Westrum case involved a third breach within four years, and the Neal case involved administration., he said. The Vince case had the most relevance, he submitted. Another recent case is RIB V Yesberg, a case involving administration and failing to observe withholding periods, which involved two horses with positives to two different substances at a trials meeting. Mr Yesberg received a fine of $3,500. The old guidelines made a distinction between presentation and administration. Mr Smolenski’s two previous charges were administration offences  which, therefore, commanded higher penalties, he submitted. He did not see this as being a third offence, Mr Irving said. It could be viewed as “remarkable” that, in 37 years of training, this is Mr Smolenski’s first charge involving “carelessness”, he submitted.

REASONS FOR PENALTY:

1.  Mr Smolenski has admitted a charge of presenting SOPHIA BROMAC, trained by him, to race at the meeting of Methven TC at Orari on 10th October 2021 not free of prohibited substances. Phenylbutazone and its metabolite, Oxyphenbutazone, prohibited substances under the Prohibited Substance Regulations in the New Zealand Rules of Harness Racing, were detected in a post-race urine sample taken from the mare.

2.  The facts, as set out in the Summary of Facts (above), are not disputed by Mr Smolenski.

3.  It is not uncommon for the source of the prohibited substance to be unknown, but it seems very likely in the present case, and the Committee accepts, that the source of the Phenylbutazone was a residue of feed with which that substance had been mixed, and given to another animal on the property for a legitimate use, which was discarded by Mr Smolenski and then consumed by SOPHIA BROMAC.

4.  Mr Smolenski, in his submissions to the Committee at the hearing, said that it has been his practice throughout his training career, when cleaning feed buckets, to empty any residue remaining in a bucket onto the ground. The Committee is sure that Mr Smolenski, in retrospect, will realise the folly of such a practice. He told the Committee that he has now, advisedly, changed his practice and has given the Committee an assurance that such a mistake will not happen again.

5.  The Committee finds that, accepting that this was the likely source of the “bute”, Mr Smolenski was guilty of a degree of negligence in not foreseeing, at least the possibility, of “cross-contamination”. This is an aggravating factor.

6.  A question arises as to the extent to which Mr Smolenski’s two previous breaches should be regarded as an aggravating factor. It is relevant to consider the circumstances of those two breaches. The first, in 2005, involved administration of an ulcer medication, Ranitidine, within a withholding period, to a horse subsequently placed 2nd in a PGG Yearling Sales Series Final. Mr Smolenski was disqualified for 5 months. The second, in 2011, involved administration of Osmitrol, a non-prohibited substance, by injection to three horses on raceday. Mr Smolenski was fined $3,500 for that offence.

7.  What is significant about those breaches is that they are now almost historical – the most recent is now 10 years old. Furthermore, it is relevant, and it was referred to by Mr Irving in his submissions, that those two offences involved a deliberate act, or an administration, by Mr Smolenski whereas the circumstances of the present breach were accidental, although involving negligence on Mr Smolenski’s part.

8.  The Committee cannot ignore those previous breaches. But is it reasonable to treat them as an aggravating factor having regard to, firstly, the nature of the previous breaches and their relevance to the present breach and, secondly, the time that has elapsed since those previous breaches? That is a matter of discretion for the Committee, to be informed by those considerations.

9.  In the final analysis, the Committee  deems that the previous offences do not constitute an aggravating factor. In essence, the Committee regards it as being a neutral factor – Mr Smolenski’s record is not regarded as a good one for which he can receive credit, but neither is it a bad one that should count against him in sentencing.

10. Relevant mitigating factors are Mr Smolenski’s cooperation and frankness throughout the investigation and his early and very frank admission of the breach.

11.  The most helpful precedent to which Mr Irving was able to refer the Committee is the very recent case of Vince. That case involved the same two prohibited substances as the present case but, more significantly, most likely also involved “cross-contamination”. The Respondent was fined $3,400. The penalty in the Vince case is of more assistance to this Committee than the former JCA Penalty Guide which suggests a starting point of an $8,000 fine for a first presentation offence and, for a second offence, a two-year disqualification and a fine of up to $10,000. The Committee does not consider that it is appropriate to consider the latter as a starting point in this case.

12. In the Vince case, a number of precedents by way of presentation cases were cited to assist the Committee in that case. Penalties in those cases, which included thoroughbred cases, were in the range of $2,400 at the lower end, up to $4,000.

13. The Committee has taken the penalty in Vince ($3,400 fine) as a starting point. That fine took into account mitigating factors, including a good record. The Committee has taken into account the desirability of consistency with previous penalties in dealing with similar offenders committing similar offences in similar circumstances.  In recognition of Mr Smolenski’s previous breaches, which the Committee has dealt with above, he cannot receive credit for a good record and, accordingly, that starting point is uplifted to arrive at a fine of $4,200, in recognition of the fact that Mr Vince was given credit for a good record.

14.  The Committee believes that a fine of $4,200 will satisfy the usual principles of sentencing – that is to say, to hold Mr Smolenski accountable, to promote in him a sense of responsibility for, and an acknowledgement of, the offence, to denounce his conduct and to deter him and others from committing the same or similar offence.

CONCLUSION:

Mr Smolenski is fined the sum of $4,200.

DISQUALIFICATION OF HORSE:

An order disqualifying SOPHIA BROMAC from the race was earlier made by the Committee on 11 November 2021.

COSTS:

The hearing took place on a raceday and, therefore, there will be no order as to costs.

 

Decision Date: 06/12/2021

Publish Date: 07/12/2021