Non Raceday Inquiry – Written Decision dated 7 February 2023 – Philip Burrows

Mr Burrows was not present but filed written submissions as to penalty

1. Mr Burrows has admitted 3 breaches of the New Zealand Harness Racing Rules and the hearing was to fix penalties for such offences. He was a Licensed Trainer since 1996 and, at the time of these offences was Principal Trainer for Rakero Racing Stables operating in Fernside, North Canterbury.

2. He was charged that on 8 November 2022 at Fernside:

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

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

(c)  He, being a Licensed person, associated with a prohibited person, Mr M J Anderson, for the purposes of the raceday preparation of 2 registered horses “RAKERO REBEL” and “MILLWOOD INDIE” in breach of NZ Harness Racing Rule 1001(1)(zd) and is subject to the penalties pursuant to Rule 1001(2) (Information A16903).

3.  Mr Anderson has also been charged with similar offences (Information’s No. A16904, A16905 and A16906) which he ultimately admitted through Counsel so can be named in this decision. His penalty hearing is to be later held, probably on the papers,

4.  Rule 1004I(1) relates to the Administration of a Prohibited Substance and, where relevant provides:

“A person commits a breach of the Rules who administers a Prohibited Substance to a horse which ….. is to be taken to a racecourse for the purpose of engaging in a race.”

5.  The many substances which are prohibited from administration include Alcohols; pursuant to the Prohibited Substance Regulations 1.2.5 and also under the Definition Section of the Rules of a “Prohibited Substance”.

6.  Rule 1004C(1) is known as the “One Clear Day Rule” which prohibits the administration of any substance by use of gastric or nasal gastric tube injection, hypodermic needle or oral syringe to a horse within one clear day of racing in an intended race.  The nature of the substance is not relevant to liability. It arises if the manner of administration is prohibited regardless of the nature of the substance administered.

7.  Rule 1001(1)(zd) provides that: “A Licensed person commits a breach of the “Serious Racing Offences” Rule who “aids or assists or associates with any prohibited person for the purposes of ….. care or in training …. of any horse registered under these Rules”.

8.  Breaches of Rules 1004I(1) and Rule 1001(1)(zd) are declared to be “Serious Racing Charges”.

9.  The penalty provisions:

(a)  For a breach of a Serious Racing Charge Rule is Rule 1001(2) which provides for liability to:

(a)  A fine not exceeding $30,000 and/or

(b)  Suspension from holding or obtaining a Licence for any specified period, or for life and/or

(c)  Disqualification for a specific period or for life.

(b)  For a breach of Rule 1004C(1) – the “One Clear Day” Rule 1004D(1) provides for:

(a)  A fine not exceeding $20,000 and/or

(b)  Disqualification, suspension of a Licence for any specified period not exceeding 5 years.

Essential Facts

10.  On Tuesday 8 November 2022, the NZ Metropolitan Trotting Club conducted its Cup Day meeting at Addington Raceway.  Mr Burrows, a Licensed Trainer had two horses entered to race that day.  Consequent upon receiving certain information or allegations, Investigators from the RIB conducted covert surveillance of Mr Burrows’ racing stables in Fernside during the morning of 8 November 2022.  At approximately 11am Mr Burrows, and an associate, Mr M J Anderson who was a Prohibited Person under Section 40 of the Racing Industry Act (following upon certain District Court convictions for violent offences in November 2020) were observed to bring 2 horses into the tie up area of the main stable.  These horses were to race at the meeting at Addington that afternoon and they were “RAKERO REBEL”, a 3 year old filly due to race at 3.06pm in the Group 1 Nevele R Fillies Series Final with a total stake money of $140,000 and “MILLWOOD INDIE” to race in a lower class race.  The actions of Mr Burrows and Mr Anderson were captured on film (by zoom video).

11.  Both Mr Burrows and Mr Anderson proceeded to remove the covers of both horses, attend to and groom them over a period of 30 minutes in preparation for their races.  Mr Anderson was not permitted to assist in raceday preparation of any horse and he knew this.  He had been written to on 21 December 2021 by HRNZ and advised that as a Prohibited Person he might be able to purchase, break-in and gait yearlings, but he was not to prepare horses for any trial or raceday or undertake any training of any kind.  Mr Burrows also knew of this having been issued formal written warnings on 11 and 15 June 2022 over Mr Anderson’s involvement) with his horses in breach of Rules 1001(1)(zd) and Rule 1002(1)(b).

12.  At about 11.20am, Investigators observed Mr Burows inject a substance into the neck of “RAKERO REBEL” using a hypodermic syringe.  Mr Anderson held the head of the horse to assist in the process.  When later apprehended Mr Burrows said to the Investigators that the substance was vodka and he used 30mls of it (neat).  Vodka contains 40% alcohol which is a Prohibited Substance.

13.  Not content with such prohibited injecting administration, Mr Burrows, with Mr Anderson assisting by holding the horse’s head, and using a “twitch” (a device used to restrain horses in various stressful situations), then “tubed” the horse.  This is a process of inserting a plastic tube into the horse’s nostril and oesophagus  in order to administer a liquid substance with the associate assisting.  Mr Burrows completed the process twice.  When later interviewed he said that the liquid was a “slurry” (that is a “milkshake”), being a combination of bicarbonate of soda, brown sugar, Epsom Salts and water.  It had to be mixed or prepared in advance, and is well understood to be intended to affect in some way a horse’s performance.  Whether it does or not is not relevant to the charge.  The administration of the injection and the tubing took place approximately 3½ hours prior to the Group 1 Race.

14.  Mr Burrows then led “MILLWOOD INDIE” and Mr Anderson led “RAKERO REBEL” onto the horse float for the purpose of proceeding to Addington.  Mr Burrows drove the float.  Mr Anderson had departed elsewhere.  Mr Burrows was apprehended in his driveway by Investigators.  They then located in the medicine cabinet at the stable a plastic bucket containing the tubing apparatus, an empty plastic container, and a used 30ml  syringe in a rubbish sack.  Also located in the cabinet were 2 one litre bottles of “Ivanov” Vodka (labelled 37.2% alcohol), one of which was empty and the other contained approximately 150mls.

15.  After consultation by the Investigators with the Chief Harness Steward, “RAKERO REBEL” was late scratched from its race.  It was taken to Addington Raceway to undergo swabbing and other tests.

16.  Upon being apprehended at the time, Mr Burrows admitted to the Investigators injecting “RAKERO REBEL” with, he said, 30mls of vodka to help calm the horse’s nerves.  He also admitted “tubing” the filly with a “slurry” (mixture) of bicarbonate of soda, Epsom Salts, brown sugar and water.  These are often known ingredients of a “milkshake” mixture.  He explained his actions saying:

“It’s a Group Race and you just feel like you are behind the eight ball sometimes and you just want to do your best, get the best result you can for the owners”.

17.  Mr Anderson, when confronted away from the training premises did not equally cooperate.  He said that he “did not know anything” about what was alleged.  He lied.  When told that it was all on film he took refuge in silence and declined further comment saying he needed to consult “his lawyer”.  About a week later he admitted holding a horse whilst it was injected and using a “twitch” whilst it was tubed but claimed that he did not know what horse it was.

18.  The Adjudicative Committee has had the benefit of seeing the approximately 30 minute video film taken by the Investigator.  It has assisted the Adjudicative Committee.  It provides compelling evidence of both men’s action over that period, involving in the injection of, and subsequent “milkshaking” of, “RAKERO REBEL”.  The manner of their procedure the Informant submitted, displayed a proficiency and skill together.  It was accompanied by mannerisms of surreptitious or furtive demeanor – i.e. frequently looking out to ensure their actions were not observed.  There was some force in that submission

Penalty

19.  The Adjudicative Committee received extensive submissions from the Informant.  These referred to the well known purposes and principles detailed by the Appeals Tribunal in RIU v L (13 May 2019) and the decision in RIU v Kerr (13 April 2021).  The RIB referred to penalties imposed in RIU v Alford (10 May 2021 – 7 years’ disqualification), RIU v McGrath (8 years’ disqualification).  Mr Irving submitted that a minimum period of disqualification of 8 years was appropriate to reflect the totality of the offending, from a “starting point” of 10 years.

20.  Mr Burrows submitted, in summary that:

• He had been in the sport/industry for 30 years, had been working long hours under stress and simply “made a poor decision”.  He said he was remorseful and tendered 3 letters in the form of character references.  One of these characterised Mr Burrows’ actions as “an error of judgment”.  The Adjudicative Committee comments at this stage that suggestion is sophistry as what he did was deliberately planned and executed, without being a “judgment error”.  That character letter states that alcohol is not a “prohibited substance” as it is not listed in the Regulations but that view is wrong.  Mr Burrows’ plea accepts it is.  Further the Interpretation Section in the Rule (R105) defines a Prohibitive Substance as including “(c) where not set out in the Regulations any substance capable of affecting the …. conduct of a horse”.
• Mr Burrows said that the vodka was a substance intended to be used for such a purpose

21.  Mr Burrows contended that whilst he was open when confronted by the Investigators it “was in my interests to lie and refuse information so as to ensure he would have faced a lesser charge”.  He opines that “honesty and integrity is not the best policy”.  He is wrong.  If that is a sentiment adopted by some Harness Trainers so that they may invoke forensic strategies vis-à-vis the professional regulatory process, so as to promote self interest, then it is lamentable.  Trainers and all Licensees ought to assist and work to advance the interests of the profession, which would advance theirs.  To ignore the profession’s interests so as to advance one’s self pursuits – when a wrongdoer – is to dishonour the duty to the profession.  If the focus should be on self interests when defying the Rules of that profession, is a common philosophy (as Mr Burrows alludes to) – to do whatever can be done to avoid responsibility for their wrongdoing , then this suggests a very jaundiced view taken by such Trainers.

22.  Mr Burrows says it is “unfair” for a lengthy disqualification sanction as it does not involve the chance to prove himself.”

23.  He attempts to direct criticism at the RIB Investigators for what he says was not intervening when he was first to seen to be involved that morning with Mr Anderson.  He contends that if they had intervened, the other serious administration offences would not have occurred.  This is a fatuous claim.  If valid it would mean that policing authorities were required to stop an offender committing an offence that they did not then know, or contemplate was going to happen, even if suspected.  Mr Burrows planned and intended to commit the offences and breaches of the Rules by injecting a Prohibited Substance and administering a “milkshake” solution on raceday with the help of Mr Anderson.  The Investigator did not know in advance whether that would occur, although they had received some suspicious information.  But they did, and could, not know what, if anything, was to happen over the time of their observations.  They were entitled to continue to watch and film what was happening over 30 minutes.  It is complete nonsense for Mr Burrows to argue that because of Mr Anderson’s status the Investigator had a duty to intervene, and cease to observe and film what may have been developing serious offending behaviour.  It is open to Police, for example, to observe some behaviour pointing towards commission actions leading up a possible crime to elect not to intervene until the  intended crime is committed.  In the present situation, that the authorities believed some offences might be intended, but were not able to know that it would occur.  It was entirely appropriate for there to be continued surveillance and filming to observe what in fact Mr Burrows and his assistant were up to.

24.  Mr Burrows further says that if a disqualification is appropriate it should be no more than for 2 years.

Penalty Outcome

25.  Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, 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.

… A common thread in cases involving serious misconduct is for the regulatory Tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member who betrays his/her duty to the profession…The Tribunal must endeavour to reach a proportionate balance between:

• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors.

26.  The need to deter other Trainers who might choose to operate in similar ways is vital.  This sport cannot endure if this type of offending continues.  As mentioned in RIU v Kerr:

“It is the general deterrence principle to which we give special weight, in the sentencing balancing exercise so that any Trainer who might tend to forget [where] their duty lies.”

27.  Any Trainer or Licensee who may transgress in similar ways to what Mr Burrows (and Mr Alford and Mr McGrath) did must understand that severe sanctions will follow.

28.  This offending cannot be described as an “error of judgment” or the making of a “poor decision”.  It was deliberate, flagrant, premeditated and egregious behaviour.  It was not an inadvertent administration of a Prohibited Substance by injecting, nor an inadvertent tubing by way of a mixed up “milkshake” solution.  Mr Burrows was acting dishonestly, knowingly to breach  several Rules, to try to gain an advantage over other Trainers/Owners/competitors in a prestigious Group 1 Race – that is to cheat.  As Mr Burrows said to the Investigators, the hypodermic injecting and tubing was intended for illicit gain because:

“It’s a Group 1 Race and you just feel like you’re behind the eight ball sometimes and you just wanna do your best, get the best result you can for the Owners”.

29.  That illustrates a total indifference to the essential Rules and ethics of Harness Racing, and disregard for the rights of other competitors.

30.  Further the use of the Prohibited Person to assist, know of the Prohibition, and having previously been warned in writing for doing so (on 11 June 2021), illustrates blatant self entitled disregard for the standards of the profession.  He has forfeited his privilege (it is that, and not “a right”) to participate in it.  The only issue is for how long.

31.  The Adjudicative Committee in RIU v McGrath fixed a global starting point of 10 years’ disqualification which, as it said, incorporated the aggravating feature of his breaches of the Rules of Harness Racing.  In RIU v Alford, which has some similarities to Mr Burrows’ case, a starting point of 9 years was fixed and because of strong mitigating features a final sanction of 7 years was imposed.  The Adjudicative Committee considers that in this case a starting point of similar years is appropriate.  But the difference ends there when the actual sanction has to be reached.  Mr Alford had no previous breaches of the Rules, which is not the case with Mr Burrows.  The Adjudicative Committee regards that a starting point of 9 years disqualification before factoring in aggravating and mitigating factors.

32.  So we focus on the aggravating factors.  There are several.

(a)  In 2004, when Mr Burrows was Stable Foreman for Mr McGrath, and he was found guilty of a similar breach of the administration of a Prohibited Substance (related to the “BLUE MAGIC” enquiries), he was disqualified for 6 months.  He claims this should be disregarded as so long ago.  We do not agree. His present serious offence seems to illustrate a propensity to act in a dishonest and similar way to the earlier offence from which he does not appear to have learnt a lesson.

(b)  He defied and heedless of, the formal warning and advice given to him in June 2021 regarding his continued enaging with Mr Anderson in this way.

(c)  This was a Group 1 Race for 3 year old fillies with stakes of $140,000 racing on the Sport’s biggest day of the year and his actions brought widespread public condemnation with significant reputational damage to the Harness Racing Industry.

(d)  His actions prevented the filly obtaining the chance of achieving valuable “Black Type Status”, as well as the Owners obtaining some stakes.

(e)  Animal welfare issues exist where vodka is injected into a horse.

(f)  His actions were prepared, and deliberate and the video film of what he and Mr Anderson did over 30 minutes supports a conclusion that Mr Burrows was adept, skilled and well prepared for what he was seen to do to the horse.

(g)  From the global starting point of 9 years, an uplift of no less than 2 years is required to reflect the serious aggravating factors.

Mitigating Factors

33.  Unlike in Alford, there can be no mitigating factor for a clear record.  His claim to now being remorseful has a hollow ring.  As Courts often say, remorse is often simply sorrow for having been caught in offending and for the predicament in which an offender finds himself.  In some situations guilty pleas may (not must) illustrate remorse and in Alford it was said that admission of charges may be a matter of mitigation.  But that is not always the automatic case.  As the Supreme Court made clear in Hessell v R [2010] NZSC135, the sentencing task is often one of complexity with an infinite variety of circumstances to be considered in what is an intensely factual evaluation and whether a discount, if any, should be given for a guilty plea requires a full evaluation of all the circumstances.  These will include “the strength of the prosecution case and whether, consideration of all the relevant circumstances may identify the “true mitigatory effect of the plea”.

34.  In Mr Burrows’ case, to advance any defence would have been futile.  He was caught red-handed and had no choice but to “fess” (derived from “confess”) up.  But because of his frankness at the time, when caught, he may have a small discount.  His claim of remorse has a hollow ring, and is only sorry for having been caught.  But a small discount may be given for his “cooperation”.  This is fixed at 1 year.

35.  There are no other compelling personal circumstances that justify a further discount.

36.  Disqualification from the profession for a significant period is required .  As has been said in many professional disciplinary cases – and not just in Racing – a person who is licensed so as to have the privilege to participate in a profession faces exclusion from his/her professions (whatever it may be) if they very seriously fail to meet the Rules and ethical standards required of the profession.  Otherwise the integrity, public confidence and reputation of the profession is harmed.  It should be no different in Harness Racing. The licence to participate is a privilege which is likely to be forfeited if the Licensee seriously betrays his duty.  The importance of deterrence cannot be underestimated, so that others who might choose to offend in similar ways will know that condign penalties will follow.

37.  Mr Burrows has shown that he is not a fit person to have a licence to train or to enjoy aspects of Harness Racing.  If on the completion of his period of disqualification he wishes, as he says, to return to the profession as a Trainer, this would not be automatic.  He would then have to satisfy HRNZ that he is fit and proper so as to be afforded a licence.

38.  We fix a disqualification sanction base on the totality principle, so as to reflect the global wrongdoing.  Although the terms of disqualification have to be applied separately to each Information, they are to be concurrent so that the lead sanction is disqualification for 10 years on the administration of the Prohibited Substance by syringe (Information A16901) to commence on 1 February 2023.

39.  The penalty for the Tubing breach of the One Day Rule (Information A16902) is disqualification for 3 years concurrent, to commence on 1 February 2023.

40.  For the breach of Rule 1001(1) in using a Prohibited Person to assist him (Information A16903) we impose, a period of 3 years disqualification concurrent, to commence on 1 February 2023.

41.  The RIB says it does not seek an order for costs.  However, the RIB and Adjudicative Committee have incurred expenses in dealing with the charges, convening in Christchurch and otherwise.  Mr Burrows is ordered to pay $1,500 to it being only a small proportion of the actual expenses incurred.