Non Raceday Inquiry – Reserved Penalty Decision dated 30 September 2022 – Paul Kerr

BACKGROUND:

The Respondent, Licensed Trainer, Paul Kerr, is charged that on 17th August 2022, as the Registered Trainer and person in charge of the horse GREENBANK DON (3-y-o bay gelding by Muscle Mass – Princess Galleon), he presented that horse at the North Canterbury TOA Trials held at Rangiora Raceway for the purpose of and did engage in Race 1, Qualifying Trot, and failed to present that horse free of prohibited substances, namely, Phenylbutazone and Oxyphenbutazone in breach of Rule 1004A(2) and (4).

The charge and Rules were read to the Respondent, who confirmed that he understood the charge and Rules, and that he admitted the charge.

THE RULES:

Rule 1004(A) provides:

(2)   A horse shall be presented for a 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.

THE FACTS:

1.  Racing Investigator, Kylie Williams, presented an agreed Summary of Facts.

2.  GREENBANK DON was presented to race by the Respondent at the North Canterbury TOA Trials meeting at Rangiora Raceway on Tuesday, 17 August 2022.

3.   Blood testing was being conducted by the Racing Integrity Board (RIB) and a pre-race blood sample was taken from GREENBANK DON by Veterinarian, Dr Donna Williamson, at 10.27am in the presence of stable employee, Junior Driver, Zara Power.

4.  The sample was sent to the New Zealand Racing Laboratory Service which, on 31 August 2022, issued a Certificate of Analysis detailing that Phenylbutazone and Oxyphenbutazone (a metabolite of Phenylbutazone) were detected in the sample.

5.   Phenylbutazone is a non-steroidal anti-inflammatory drug and cyclooxygenase inhibitor. It is a potent pain inhibitor, antipyretic and anti-inflammatory. In the horse, it is used commonly for lameness resulting from soft-tissue injury, muscle soreness, bone and joint problems and laminitis. It has a variable withholding time of approximately 7 days.

6.   On 5 September, the Respondent was interviewed at his stable at Ohoka, in North Canterbury, and informed of the positive result. He admitted to treating GREENBANK DON with 6 mls of “Bute” oral paste, instead of the usual 10 mls, on 12 August 2022 – 5 days prior to the trial – after the horse had knocked an old injury to a hind leg, resulting in swelling.

7.  “Bute” paste was located in the Respondent’s refrigerator at his stable where he keeps it.

8.  Miss Power was also interviewed and she confirmed that she accepted that the swabbing procedure was properly carried out.

RESPONDENT’S SUBMISSIONS:

1. Prior to the hearing, the Respondent had provided a very brief submission by email:

I wish to plead guilty to the charge and apologise for the inconvenience to all concerned. I pride myself on being careful with any drug used around the stable. The horse wasn’t injured as such but had minor inflammation from knocking an old paddock injury. I gave him the bute to reduce the inflammation. At no stage  was the horse lame or sore otherwise he wouldn’t have been at the trial.

2.  The Respondent confirmed, when asked by the Adjudicative Committee, that he was aware of the withholding period for Phenylbutazone, being 7 days. Being so aware, he said, he mistakenly believed that reducing the dosage from 10 mls to 6 mls would shorten the withholding period, as he was planning on going to the trials 5 days later. Mrs Williams said that this was not the case. The Respondent expressed annoyance with himself that he had allowed this to happen.

3.  The horse had a “little bit of swelling” but was not sore. Bute is the only drug than can be used to take away any soft-tissue swelling, he said. Just one dose was administered to the horse.

APPLICANT’S SUBMISSIONS FOR PENALTY:

1.  The Respondent is a licensed Public Trainer and has held a licence since  1983/1984.

2.  An entry in the Respondent’s treatment diary for 12 August 2022 detailed: Muscles (Greenbank Don) – Ice leg, 6 mls Bute”

3.  Mrs Williams listed a number of aggravating factors:

• Having held a licence for so long, the Respondent is well aware that drug-testing is undertaken at trials;
• He is aware of the withholding time for Bute but, notwithstanding, elected to reduce the amount of the normal dose and use it 5 days out from the trial despite being aware of the 7-days withholding period;
• The Laboratory have advised that the level detected exceeded 200 micrograms per litre being the upper limit of the calibration range of the method used;
• The deliberate use of non-steroidal anti-inflammatories when racing may mask a horse’s injury and associated pain, thereby increasing the risk of further injury; and
• The Respondent has two previous breaches of the Prohibited Substance Rules. However, both were a long time ago.

4.   Mitigating factors are that the Respondent has been cooperative throughout the RIB process and admitted the charge at the first available opportunity.

5.   The Penalty Guide recommends a starting point of an $8,000 fine for a first offence. Cases indicate that where the breach occurs in a trial and not a raceday, a reduction from the starting point is applied.

6.   Mrs Williams’ submissions then listed details of a number of penalties in previous cases, in both the Harness and Thoroughbred Codes, which were of assistance to the Adjudicative Committee.

7.   GREENBANK DON is required to be disqualified from the trial on 17 August 2022.

8.   In determining penalty, the Adjudicative Committee should  have regard to the purpose of the proceedings – to ensure the Rules are complied with, to uphold and maintain the high standards expected of Trainers relating to prohibited substances and to protect the other participants in Harness Racing and the betting public.

THE RESPONDENT’S PENALTY SUBMISSIONS:

1.  The Respondent said that he understood the level of fines and the need for them. He regretted the breach at this stage of his career, which is probably in its final stages, he said. He apologised for the breach and to all those affected by it.

2. It was his mistake, a genuine mistake, and he took full responsibility for it, he said.

PENALTY RULES:

Rule 1004D provides as follows:

(1)  A person who commits a breach of a rule in rules 1004A, 1004B, or1004C shall be liable to:

(a)    a fine not exceeding $20,000; and

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

(2)  Any horse connected with a breach of the rule must be disqualified from the race and may in addition be disqualified for a period not  exceeding five years.

REASONS FOR PENALTY:

1.  The Respondent took the 3-year-old gelding, GREENBACK DON, trained by him, to the Trials Meeting held by North Canterbury TOA at Rangiora Raceway on 17th August 2022 to compete in Race 1, Qualifying Trot. The horse won the race.

2.  Five days prior to the race, the Respondent had administered to GREENBACK DON 6 mls of Phenylbutazone, often referred to as “Bute”, a non-steroidal anti-inflammatory drug for the relief of anti-inflammatory conditions. This was, he told us, out of concern for “minor inflammation from knocking an old paddock injury”, and not to treat the horse for any injury.

3.  A pre-race blood sample was taken was taken for analysis by New Zealand Racing Laboratory Services, which analysis detected the presence in the sample of Phenylbutazone and its metabolite, Oxyphenbutazone. Anti-inflammatory agents are prohibited substances under the Rules of Harness Racing New Zealand. The Certificate of Analysis revealed that the concentration of Phenylbutazone in the sample “exceeded 200 micrograms per litre being the upper limit of the calibration range of the method used”.

4.  During the course of the investigation, the Respondent admitted to having administered 6 mls of Bute to GREENBANK DON five days prior to the day of the trial. The usual dosage is 10 mls, but the Respondent explained that he believed, wrongly as it transpired, that to reduce the dosage would proportionately reduce the withholding time which, the Adjudicative Committee was informed, is 7 days.

5.  Bute paste was found at the Respondent’s stables and his treatment diary recorded the treatment on 12th August.

6.  The Respondent has been in the Harness Racing Industry as a Trainer for almost 40 years and has trained 315 winners, including 24 in partnership with his son, Mitchell, in 2015 and 2016. In addition, he held an Open Driver’s licence between 1987 and 2013, during which period he drove 69 winners.

7.  His involvement and experience in the Industry is vast and it is, therefore, rather surprising that he has now found himself facing this charge, after making what could be described as a “schoolboy mistake”. This could have been avoided, quite simply, obviously by not treating GREENBANK DON so close in proximity, time-wise, to the trial or, as a minimum, obtaining veterinary advice before administering the treatment at that time. These steps could have reasonably been expected of a Trainer with the Respondent’s long involvement in training horses.

8.  The Penalty Guide starting point for a first, mid-level presentation breach is a fine of $8,000. Most fines for first presentation offences have been less, even much less, than that starting point. The Adjudicative Committee has considered the fact situations in a number of previous similar cases  and the penalties imposed in those cases. Several of those were referred to the Adjudicative Committee by the Applicant in her penalty submissions.

9.  There are a number of previous cases involving presenting a horse or horses to a trials meeting and, in those cases, it is acknowledged that the penalty for presenting to a trials meeting should be on a lower scale than the penalty for presenting to a race meeting.

10. The most recent Harness Racing case is that of RIB v Y (August 2021) in which a Trainer took two horses to a trials meeting. In its decision the Adjudicative Committee said:

Mr Y had been treating both horses for foot problems and in the case of [one horse], with Lasix for bleeding, under a program of treatment prescribed by his Veterinarian. He had calculated the required withholding period based on the horses trialling at Rangiora on 7th July. Noting  an unfavourable weather forecast for that date he, unwisely as it turned out, decided to change his plans and take the two horses to trial at Ashburton on 6th July. The difference of that one day, Mr Y believed, was the reason for the horses returning positive tests to the prohibited substances the subject of these charges”. The Respondent, Y,  was fined $3,500.

11.  Similarly to the case of Y, the Respondent in the present case has been negligent in “tinkering” with known withholding times.

12.  Penalties in other similar cases (at trials meetings) referred to by the Applicant in the Harness and Thoroughbred Codes ranged between fines of  $2,400 and $3,000.

13.  Of the previous cases, the Adjudicative Committee considers Y to be most apposite. The Adjudicative Committee, in that case, took a starting point for penalty of $5,000. The present case involved only one horse and only one prohibited substance. A lower starting point is appropriate in this case, and this is to be $4,000.

14.  The Respondent has a previous breach of the Prohibited Substances Rule on his record (in Australia in 2010) and a TCO2 positive in New Zealand  back in 1995. The Adjudicative Committee regards those previous breaches as historical and as a neutral factor, rather than an aggravating factor.

15.  Mitigating factors, the Adjudicative Committee was told, are the Respondent’s cooperation during the course of the RIB investigation and his admission of the breach at the first available opportunity. In addition, the Respondent appeared genuinely remorseful at the hearing of the charge.

16.  For those mitigating factors, the Adjudicative Committee has determined that a discount of $1,000 is appropriate.

17.  In determining the final penalty, the Adjudicative Committee has had regard to the usual principles of sentencing – to hold the Respondent accountable for his offending, to promote in him a sense of responsibility for and an acknowledgement of that offending and the need to denounce his conduct. In addition, the Adjudicative Committee has also taken into account the need to deter others from committing the same or a similar breach.

18.  It has been said many times that there is nothing more likely to bring down the integrity of the Racing Industry generally than the fact that horses perform at meetings (including trials meetings) when they have been administered a prohibited substance, in whatever circumstances, and it is the obligation of Adjudicative Committees to denounce and deter that practice. It is important for public confidence in the Industry that horses race free of any prohibited substance.

DISQUALIFICATION OF HORSE:

It has been ordered that GREENBANK DON is disqualified from Race 1, Qualifying Trot, at the meeting of North Canterbury TOA at Rangiora Raceway on 17th August 2022.

PENALTY:

The Respondent is fined the sum of $3,000.

COSTS:

The Applicant did not seek costs. As the hearing took place on a raceday, there will be no order for costs in favour of the Adjudicative Committee.