Non Raceday Inquiry – Written Reserved Decision dated 4 April 2024 – Kurtis Pertab

THE CHARGE

[1]  Mr Pertab holds a Class B Trainer’s Licence.  In addition, he is engaged in breaking in a significant number of young nonraced unregistered thoroughbred racehorses.  He is charged with a breach of Rule 802(1) of the New Zealand Thoroughbred Racing Rules of Racing in that he acted in contravention or failed to comply with provisions of the directions and instructions made under the Rules.

[2]  The wording of the charge, as amended, was that on 30 December 2023 at Matamata Racecourse he:

“Failed to handle the 3-year-old filly (STAPHANOS – ASHALINI) in accordance with the handling practices outlined in Section 6.1.5 of the NZTR Thoroughbred Welfare Detailed Assessment Standards & Part 6.1 Equine Handling & Training, Code of Welfare – Horses and Donkeys, in that he struck the horse about the head and around the side of the belly and across the shoulder with a riding whip numerous times in an excessive & unnecessary manner, therefore liable to penalty pursuant to Rule 803(1).”

“Rule 802(1)  A person commits a breach of these Rules who:

(a) acts in contravention of or fails to comply with any provision of these Rules or Regulations made thereunder, or any policy, notice, direction, instruction, guideline, restriction, requirement or condition given, made or imposed under the Rules;

Section 6 HANDLING – NZTR Thoroughbred Welfare Detailed Assessment Standards

6.1.5 Handled following the practices outlined in Part 6.1 of the Code of Welfare: Horses and Donkeys.

Part 6.1 Equine Handling and Training – Code of Welfare – Horses and Donkeys

Minimum Standard No. 8 – Equine Handling and Training

(db)  Horses must not be struck around their heads.

(e)  The whip, lead or any similar object must only be used for safety, correction and encouragement and not used in an unnecessary, excessive or improper manner.

[3]  The general penalty provision in Rule 803(1) are those which are relevant.  It 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:

(a)  be disqualified for a period not exceeding 12 months; and/or

(b)  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

(c)  a fine not exceeding $20,000.”

[4]  Mr Pertab when interviewed by Investigators on 19 January 2024, in summary, claimed that his actions were not excessive and were necessary to gain control of the horse.

[5]  As a result of the Informant agreeing to Mr Pertab’s requirement that the Summary of Facts be amended as they related to the breach offence, the Charge Document and Amended Summary of Facts was presented, and Mr Pertab then pleaded guilty on 12 March 2024, to the breach of the Rule.

[6]  Amended “Summary” of Facts, states as follows:

“The Respondent in this matter, Kurtis Antony PERTAB, is a holder of a Class B Trainers Licence issued by New Zealand Thoroughbred Racing [NZTR].

He is 22 years of age, and currently has in work breaking and educating young horses, an estimated about two thirds (66%) of the business, and one third (33%) being training horses in work.  But emphasised that breaking and training is seasonal (mainly from January through to May).

The Respondent is listed as a co-director of Pertab Racing Limited along with fellow director – Tineke PERTAB, his mother.

Circumstances

On Saturday 30th of December 2023, the Racing Integrity Board [RIB] received a complaint from an NZTR Licenced Trainer regarding Kurtis PERTAB’s handling of a horse at the Matamata Racecourse that morning.

The complainant stated that he and two fellow Trainers and the Track (Gap) Manager witnessed Mr Pertab giving a horse in his care a prolonged and excessive beating with a whip sometime between 4:30 – 05:30 hours that morning and that their concerns had initially been raised with the Matamata Racing Club.

On Wednesday 3rd January 2024, the RIB commenced its investigation into the complaint interviewing four independent witnesses.

The Respondent was seen riding a horse that was out of control.  He was witnessed trying to correct his horse assertively while walking off the track.  He was seen to be attempting to manage it and in doing so, struck it about the head twice with a whip.

He was then witnessed walking the horse into the tie ups beside the swimming pool, where the horse is heard receiving a further beating, before being walked back out to the track where the Respondent has continued to beat the horse with his whip.

During this period the Respondent was witnessed striking the horse – with a whip over the head a number of times, with the horse being in a stressed state.

The Respondent was then further witnessed in the tie up area becoming very agitated with the horse.  He was witnessed striking it excessively with the whip around the side of the belly, flank and across the shoulder, continuing for probably a good couple of minutes and estimated to have been 10 to 20 strikes of the whip.

All four witnesses have deemed Kurtis PERTAB’s action in handling the horse that morning as excessive and unnecessary.

Following the report of the incident to the Matamata Racing Club, an official from the club phoned the Respondent regarding the allegation.  The Respondent denied the allegation, stating “It’s only what they say, it’s he said, she said”.  The Respondent commented that he would be more careful in future.

Matamata Racing Club records for the month of December 2023 identify that Pertab Racing Limited trained a total of 39 horses at the track, averaging 20 horses per day.”

Respondent’s Statement

[7]  On Friday 19th January 2024, the Respondent was interviewed by RIB Investigators with the Respondent’s legal Counsel being present.  A transcript of that recorded interview was produced to the Adjudicative Committee.

[8]  The Respondent has stated that around 04:45 hours on the 30th December 2023, the Respondent has ridden the 3-year-old bay filly horse – (Sire – Staphanos, Dam – Ashalini) at the track.

[9]  He has admitted to having to try and get control of this horse due to the horse “being a dangerous horse, having come to him to be straightened out.”

[10]  He admitted to having a whip in his outside hand, which he proceeded to push the horse around, kick the horse and whip it on the shoulder and hind.

[11]  He denied intentionally hitting the horse over the head with his whip, acknowledging: “- it’s unlikely but I could’ve, there’s a possibility, the horse’s head’s going everywhere.  The horse was out of control, everything’s happening at speed.”

[12]  He strongly denied striking the horse excessively and claims that it comes down to “perception”.  He believes his actions were justified for “self-preservation” and to regain control of the horse, claiming “that it wasn’t excessive for the situation”.

[13]  The Respondent has acknowledged that he is aware of his obligations regarding the care and welfare of horses that he trains as an NZTR Licenced Trainer under the NZTR Rules.

Relevant Guidance

[14]  Code of Welfare – Horses and Donkeys (issued under the Animal Welfare Act 1999)

Part 6.1 Equine Handling and Training –

Minimum Standard No. 8 – Equine Handling and Training

(db)  Horses must not be struck around their heads.

(e)  The whip, lead or any other similar object must only be used for safety, correction and encouragement and not used in an unnecessary, excessive or improper manner.

[15]  It was the RIB’s position that the Respondent has breached the minimal equine handling standards by striking the horse in the head and by using a riding whip in an excessive and improper manner.

[16]  The Respondent has one previous racing offence from December 2021, 2 years prior to this offence.  The charge related to failing to comply with an NZTR Directive (in line with the governance of the COVID-19 Public Health Response Act 2020) resulting in a two-month suspension and a $1,500 fine.

[17]  Mr Pertab attended the hearing pursuant to a summons issued by the Adjudicative Committee under Rule 915(8)(b) to answer some questions relevant to aggravating and mitigating factors.  He stated that he was “not angry but frustrated and acted to try to correct the horse, it being out of control, and not to punish it.  He explained that his operations were mostly to break in for clients, with only some work in actual training as a Class B Trainer”.

[18]  He explained his previously serious racing conduct breach of dishonest behaviour in creating and presenting to the Course Manager a false Covid-19 pass, leading to a 2 month suspension of his Licence and a fine of $1,500.  He said to the Adjudicative Committee that he wanted to protect and serve his Owners.  The Adjudicative Committee regards that as a complete lack of insight into the seriousness of what he did.  It was other Trainers who complained and were those most at risk, and the deliberate defiance of his duty under the Rule, signified self-entitlement to disobey the Rules if he chose to do so.

PENALTY SUBMISSIONS

[19]  These were extensive, being 6 pages from the Informant, and 17 of submissions and 18 character references and a letter of apology from Mr Pertab.

Essential Submissions of Informant

[20]  The RIB referred to the well known principles of “sentencing” (although in the Racing Code context, it is more “penalty imposition” than being a sentence in the Criminal Courts jurisdiction).   The Adjudicative Committee was reminded and took into account, that a penalty:

• Not be disproportioned to any penalty to the gravity of the breach.
• Deterrence of others, as well as to the offender, was extremely important.
• A penalty should also reflect the disapproval of the RIB (as well as for the NZTR as creator of the Rules) to the actions of the offender.
• Any rehabilitative needs of an offender were to be taken into account.

[21]  But the Adjudicative Committee emphasises that the care and welfare of horses is foremost so as to ensure the reputation of the Industry is upheld, and if serious breaches, such as this, occurred they must be met with a stern sanction.  The Informant referred to some other cases of improper striking a horse with a whip or implement, and contended that:

• 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 the 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 Adjudicative Committee for the type of behaviour in question.
• The need to rehabilitate the offender should be considered.

[22]  The Informant submitted that care and welfare of horses is critical to maintaining the social Licence of the Horse Racing Industry and serious breaches such as this must be met with a stern response.  The Informant referred to other cases of improper striking of a horse with a whip or implement such as the UK case of M Todd (02/2021), RIB v Pinn (10/2021 and 05/2022) and RIU v McKay (10/2019).  However, each depended on their own facts with suspension of individual Licences and/or fines resulting and were of lesser gravity to this case.  The RIB submits Mr Pertab’s offending was far more serious behaviour, referred to his young age and mitigating character references, together with the aggravating features including his previous breach of the Rules, and “suggests” a starting point of 6 months disqualification.  The RIB submissions conclude with the contention that “a disqualification is necessary to set a clear example to others in the Industry that this type of behaviour and offending will not be tolerated or condoned.  Animal welfare is at the upmost importance to the Racing Industry through the humane reasons of care for the horse.  For these reasons, the RIB said that a financial penalty would not suffice or serve as an appropriate deterrent in this case”.

Submissions of Respondent

[23]  Mr Smith advised the Adjudicative Committee that Mr Pertab has, together with his mother, established a successful horse breaking and training company (Pertab Racing Ltd).  He has significant financial commitments and support (clients) of studs, other Trainers, Owners and blood stock agents.  The mortgage he services is relevant to his business.  He submits extreme financial distress would follow should he be suspended (or disqualified).  He refers to penalties under the Statutory Regulations is limited to a fine.  (The Adjudicative Committee comments that it is the Racing Industry Penalty Rules which are of wider impact and consideration which apply).

[24]  Counsel said that the earlier case of RIU v McKay is analogous and a modest fine only should be imposed with, if necessary, a significant uplift.

[25]  He submitted that Mr Pertab started a business in September 2021, over 2 years ago, which is extraordinary for a person now of only 22 years old.  He is serving a mortgage in the purchase of a Matamata property near the Racecourse.  Any suspension would lead to grave hardship and not be proportionate to the gravity of his breach.  He did not have any intent to strike the filly about the head, which was only “an element of regaining control of the horse”.

[26]  Counsel submitted that the Criminal Law Standards require there be no disproportionate consequence of a “sentence” when all the factors of the Respondent, his family and staff are considered, with the least restrictive penalty to be applied.  He advised that Mr Pertab Senior (the Respondent’s father), himself an experienced horseman, is helping him with animal welfare and his personal development.

[27]  Counsel claimed that percentage deductions of 25% for the guilty plea (Hessel v R [2010] NZSC 135), plus 10% for his good character and a further 5% to reflect his age and experience.  That is a 40% deduction from a starting point.  (The Adjudicative Committee comments that sentencing/imposition of penalty is not simply an arithmetical exercise and requires a careful balancing of all relevant factors).

[28]  Counsel submitted that the 2021 offence was only a “regulatory” breach relating to the defiance of the NZTR Covid direction and should not affect the decision.  That it is not aggravating.

[29]  Mr Smith submitted that Mr Pertab has many supporters, is seeking to educate himself in strategies to deal with unruly horses, is seeking to gain assistance from elders in the Industry, and with his animal welfare management and personal development skills.  He is remorseful and apologised for his actions.

[30]  In conclusion, Mr Smith contended that Mr Pertab did not act out of anger but “instinctively out of fear and preservation for the safety of himself, others on the Racecourse, and other horses”.  He submitted that suspension or disqualification would be unjust and that as an alternative even if a suspension be necessary, any suspension be suspended for 12 months provided that he does not breach any NZTR Rules and he completed any education process this Adjudicative Committee deems appropriate and accepts remedial measures it deems necessary.

OUTCOME

[31]  First, the Adjudicative Committee does not accept that an appropriate sanction is either a fine or a term of suspension of Mr Pertab’s Training Licence.  Attendance on a Racecourse or premises on a Raceday or otherwise, for training purposes, would be viewed with distain by the public and Trainers and community groups who will know of the actions of Mr Pertab.  Those Senior Matamata Trainers who have had the courage to complain and express their extreme concerns – as evidenced in the transcripts of their recorded interviews – are entitled to have those concerns recognised by a condign penalty.  The transcripts made abundantly clear that several Senior Matamata Trainers had previously complained to Mr Pertab about his manner and treatment of horses.  But this serious event illustrated that he did not appear to be disposed to alter his ways or be able to heed the warnings.  Those Trainers are entitled to have their concerns considered.

[32]  Such is the seriousness of what occurred and the needs of the Racing Industry, anything less than a period of disqualification would be considered inadequate.

[33]  The Adjudicative Committee does not accept Mr Pertab’s explanation that he “had to beat the filly” to the extent, duration and manner that he did because of concern for his and other’s safety.  In his interview he said the horse worked very well – with no problems, and it was only on leaving the track at the gap that the “playing up” developed.  There was evidence from the Gap Manager of some jagging of the bit at the horse’s mouth which might have led to the adverse behaviour and reaction, and the Adjudicative Committee only surmises that it may have led to a “spinning” that became uncontrollable.  What followed was the extreme and unjustifiable beating with the whip.  There were staff present to help and Mr Pertab was asked by another Trainer if he needed help, but he chose to manage the horse himself.

[34]  The responses of the horse were displaying extreme anxiety and distress.  Mr Pertab told the Adjudicative Committee that he was “not angry”.  He said he was “frustrated”.  It is the Adjudicative Committee’s understanding that “frustrating” is a “feeling of distress, annoyance and increasing anger from an inability to achieve or change something.”

[35]  Whatever Mr Pertab’s reason to beat the horse as he did, nothing justified the prolonged strikes including to the head, body, flank and stomach over several minutes.

[36]  There has to be a clear signal to all participants in the sport, and to the community, that this type of behaviour will not be tolerated.

[37]  The Adjudicative Committee expects that reasonable members of the Racing Codes would not regard a disqualification as excessive.  The Agreed Facts of the events admitted by the Respondent, establish that his actions cannot be condoned.  The facts demonstrate a high level of unnecessary, inappropriate and banned use of the whip, notably to reinforce the point;

(para 4)  While walking off the track he struck it about the head twice with the whip.

(para 5)  While walking into the tieups where the horse is heard receiving a further beating before being walked out onto the track where the Respondent has continued to beat the horse.

(para 6)  The Respondent was witnessed striking the horse – with his whip over the head a number of times with the horse being distressed.

(para 7)  He was seen to be striking it excessively with the whip around the side of the body, flank and across the shoulder, continuing for a good couple of minutes and estimated to have been 10 to 20 strikes of the whip.

[38]  These facts alone are compelling support for the need for the Respondent to be held to account for his actions.

[39]  The joint complaint, arising from separate observations of very experienced Senior Trainers, who variously describe their concerns that the actions of Mr Pertab were viewed as:

• “Extremely excessive”
• “Absolutely excessive …. it’s bloody disgraceful”

This highlights the concerns they had and their desire to protect the profession whilst he continued in it.  It may be that Mr Pertab has a distorted opinion of his ability to manage difficult horses (one other Trainer witness described him as “a bit cocky”) and indeed his offence in December 2021 suggest an inclination to do what he chose to do irrespective of the Rules of his profession.

Mitigating Factors

[40]  Those were advanced by Counsel as:

• His guilty plea which it is argued justifies a discount of 20%.  This is not entirely accepted as a discount level.  There was no guilty plea signalled until 12 March 2024 and his initial denials of the allegations which he said were only “he said, she said”.  Some concession is nevertheless made by the Adjudicative Committee, but limited given any defence would have been impossible.
• Positive character references and wide support.
• Promise in the Industry and remorse (although expressed late) provided he becomes fully rehabilitated and upholds all the requirements of the privilege of having a Licence.
• His finance and business opportunity.
• His youth, although this did not hinder his obtaining a Licence about 3 years ago.

[41]  In terms of rehabilitative needs, the Adjudicative Committee is left with the impression that his beliefs and attitudes arising out of his ignoring of Senior Trainer’s warnings, and his past creating and producing the false certificate – that he may continue to harbour a disturbed sense of entitlement.  This observation is made, not in the sense of increasing any penalty but to the possible need for counselling but that is a matter for Mr Pertab to choose to do so as to satisfy the NZTR that, at the end of his disqualification, he ought to be granted a Licence.  Whilst an Adjudicative Committee may under R812 require a person committing a breach to complete a counselling or rehabilitation course of a type specified by it and/or stay in whole or in part the operation of any penalty, it is not disposed to do so.  Apart from telling the Adjudicative Committee he did not act out of anger, it is open to the NZTR if it thinks fit, so as to be satisfied of his fitness, to require anger or other counselling but the full term of disqualification is required to be served.

[42]  Mr Pertab may be fortunate that he was not charged (and convicted) in the District Court with ill treatment of the horse, so as to face possible consequences of any conviction.  An example of this happened when a professional Rider in the showjumping jurisdiction in Christchurch (R Smithy) was convicted, which was upheld by the High Court, of ill treatment of her horse.  Apart from an “infringement” offence, (which this was not) any penalty imposed for the offence is determined by the Court, and the consequences of a conviction goes beyond sanctions imposed by the profession.  The professional must accept the sanction of his/her professional body.

Starting Point

[43]  The Adjudicative Committee fixes this at 6 months disqualification. Aggravating factors include:

Ignoring the previous warning by senior training colleagues.  The fact of the relatively recent serious racing offence is not factored in by the Adjudicative Committee to be treated as aggravating of this offence.  That is because it was of an entirely different type of breach of the Rules – albeit a serious racing offence – and unconnected with the type of ill treatment of a horse that occurred here.  The fact of the previous breach of the Rules is simply an absence of a mitigating factor of a blameless record, but is not requiring an increase as aggravating of this particular breach.

[44]  To reflect the mitigating factors:

• Of the many character references.
• His promise.
• His guilty plea.
• Support of family and others.
• His expressed remorse.
• His promise to be rehabilitated,

a generous discount of one third is afforded, but temporary removal from the profession cannot be avoided.

[45]  The Adjudicative Committee of course recognises the effect disqualification will have upon Mr Pertab, but he has the means and support to adjust his business and involvement in a way that the NZTR may endorse.  But the consequences of disqualification are clearly provided in the Rules which apply to all professionals who require to be disqualified.

[46]  Where in any profession, a person is excluded from participating because of misconduct or a breach of the Rules or requirements of that profession, will experience financial and other consequences – such as loss of clients, harm to any partnership, inability to continue in such work, – but such is as a consequence of that person’s actions.  The same will exist in all professions where the privilege (which is not a “right”) to participate is only granted and maintained if the standards are met by that person.  But where, as here, the misconduct is also recorded as falling foul of a Statutory Regulatory requirement [Animal Welfare (Care and Procedures) Regulations 2018, the removal from the profession may follow if required.

[47]  The crucial need to protect horses, the Industry, profession (and all who participate through the privilege of a Licence or Owner, ownership) requires in serious cases that disqualification follows and this is one of those cases.

[48]  Finally, the Adjudicative Committee makes it clear that under Rule 915, that Committee has been entitled to receive evidence of fact and opinion provided in the transcripts of interviews of the witnesses and Mr Pertab, for mitigating and background purposes, but has not considered any facts which are inconsistent with the Amended Agreed “Summary of Facts” of the actions of Mr Pertab on 30 December 2023.

[49]  The Adjudicative Committee allows a discount of 2 months (one third) so as to result in an outcome penalty of 4 months disqualification.  To enable Mr Pertab to make arrangements for current Owners, his interests through participation in the Company and family business, that may be affected, this disqualification is to commence on 18 April 2024 and to end at the conclusion of 18 August 2024.

[50]  No orders as to costs are made.