Non Raceday Inquiry – Written Reserved Decision dated 9 April 2024 – Tony Barron

BACKGROUND:

Information No. A16930 filed by Racing Investigator for the Racing Integrity Board, Simon Andrew Irving, alleges that on the 31st of January 2024 at Rangiora Raceway, Licensed Public Trainer, Tony Ronald Barron, the Registered Trainer and person in charge of the horse, presented GLORYS DELIGHT at the North Canterbury TOA Trials for the purpose of engaging in Race 6, failed to present the said horse free of the Prohibited Substances, Dexamethasone and Salbutamol, in breach of  Rules 1004A(2) & (4) of the New Zealand Rules of Harness Racing and subject to the penalties pursuant to Rule 1004D(1).

Mr Irving produced an Authority to Charge dated 5 March 2024, pursuant to Rule 1108(2), signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board.

The Respondent was present at the hearing of the Information. The charge and Rules were read to him and he confirmed that he understood the charge and Rules, and that he admitted the charge.

THE RULE

Rule 1004A 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) or (3) the trainer of the horse commits a breach of these Rules.

RACE means a trotting or pacing race or competition whether licensed under the Racing Industry Act 2020 or not. 

THE FACTS

Mr Irving presented the following agreed Summary of Facts:

1.  The Respondent, Tony Ronald Barron, is a Licensed Public Trainer under the New Zealand Rules of Harness Racing. He is 59 years old and has held a Trainer’s Licence since 1990, training over 4000 starters, some in partnership. He trains a small team from his West Melton Stable.

2.  GLORYS DELIGHT is a 6-year-old mare (Bettor’s Delight – Fight for Glory) trained by Mr Barron and was presented by him at the North Canterbury TOA trials at Rangiora Raceway on 31 January 2024, where routine trials drug testing was conducted.

3.  At 11.00am a pre-race blood sample (#191153) was taken from GLORYS DELIGHT by Veterinarian, Dr Donna Williamson, in the presence of Mr Barron.

4.  Having been pre-race tested, Mr Barron elected to scratch the horse from the trial.

5.  All samples taken on the day were sent to the New Zealand Racing Laboratory Service (NZRLS), which on 26 February issued a Certificate of Analysis detailing the sample positive to Dexamethasone and Salbutamol.

6.  Dexamethasone is a corticosteroid and can be used in horses to treat allergic reactions such as respiratory allergies, chronic obstructive pulmonary disease, hives, and inflammatory diseases, including arthritis. It is a Prohibited Substance (1.2.37) within the Rules and as Dexamethasone Sodium Phosphate, is listed in the most recent NZEVA (New Zealand Equine Veterinary Association) Guidelines as having a detection time of 5 days, and a possible withholding time of 7 days.

7.  Salbutamol is a beta-2 agonist that is used in the treatment of chronic obstructive pulmonary disease in horses. It is a Prohibited Substance (5.6) when prescribed as a bronchodilator by a Veterinarian and administered at the dose rate and frequency prescribed. It has an NZEVA listed detection time of 3 days and a possible withholding time of 4.2 days.

8.  The presence of both drugs in a Raceday sample is, prima facie, a breach of the Rules.

9.  On 27 February, Mr Barron was interviewed in relation to the positive swab. He stated that GLORYS DELIGHT had been diagnosed with a lung infection by his Vet, who prescribed the Salbutamol and Dexamethasone to be administered via nebulizer at 10ml doses in 2-4-day courses. He admitted to last nebulizing GLORYS DELIGHT on 29 January and was aware of the withholding time, but needed the horse to have a workout prior to recommencing racing on 9 February.

10.  Mr Barron has been a Licensed Trainer for 34 years and has one previous breach of the Prohibited Substance Rule in 2018.

SUBMISSIONS

The Informant presented the following written penalty submissions:

1.  The Respondent, Tony Ronald Barron, is a Licensed Public Trainer under the New Zealand Rules of Harness Racing. He has held a Trainer’s Licence since 1990.

2.  Mr Barron has admitted a breach of the Rules in relation to presenting GLORYS DELIGHT at the North Canterbury TOA Trials on 31 January 2024 while not free of a Prohibited Substance.

3.  The circumstances are contained in the Summary of Facts which has been agreed.

4.  The penalties which apply to this case are detailed under Rule 1004D:

(1) 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.

5.  The RIB Harness Racing Penalty Guide (February 2023) lists the starting point for a first ‘presentation’ offence as an $8,000 fine and, for a second offence as is the case here, a two-year disqualification and a fine of up to $20,000 (was previously $10,000), as is the same for Thoroughbred Racing. However, Committees have previously commented that it is just a “guide and it is no more than that”. Historically, cases where the Prohibited Substance breach occurs from a trial and not a Raceday, a significant reduction is applied.

6.  The following HR “presenting” cases may provide assistance regarding penalty:

• RIB v P Kerr (2022) – positive to Phenylbutazone at a trials meeting. Fined $3,000 and horse disqualified. An historical breach from 2010 (Australia) and a TCO2 positive in 1995 was treated by the Committee as historical and neutral rather than an aggravating factor, adopting a starting point of $4000.
• RIB v Yesberg (2021) – two horses positives to Phenylbutazone, Ketoprofen and Furosemide at a trials meeting. Fined $3,500 and horses disqualified. No previous breaches in six-year training history.
• RIU v Chilcott (2019) – positive to Salbutamol at a race meeting. Second “presenting” offence resulted in a $5,500 fine and the horse disqualified. Previous breach (O-desmethyltramadol) from 2012 when the Trainer received a $3,300 fine.
• RIU v C & A Edmonds (2016) – positive to Ketoprofen at a race meeting. Fined $6000 and the horse disqualified. This second offence followed a positive to the same drug two weeks prior where the Trainers received a $3000 fine.

7.  Aggravating Factors

Mr Barron has been a Public Trainer for some 34 years and is aware that drug testing is often undertaken at the trials. He was also aware of the withholding times, as advised by his Vet, but elected to nominate the horse for the Rangiora Trials with that knowledge.

He has one previous breach of the Prohibited Substance Rule. RIU v Barron (2018) – positive to Flunixin at a trials meeting. No source of the positive identified. $3000 fine and horse disqualified. The Committee commented that this was not a case of negligent or deliberate administration or poor timing and therefore culpability was low.

8.  Mitigating Factors

Mr Barron has been fully cooperative throughout the RIB process and has admitted the charge at the first available opportunity.

He opted to scratch his horse from the trial, and therefore negate the possibility that the horse would be disqualified and, being a trial, there would have been no impact on racing or the betting public.

He has only one previous Non Raceday charge in his lengthy involvement in the Harness Industry with over 4000 starts (over 500 wins) in his training career of 34 years.

9.  Conclusion

When determining penalty, the RIB submits that the Committee has regard to the purpose of the proceedings, which includes 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 Racing.

The RIB submits that the breach is most similar to that of Kerr, except for the recency of the prior breach, and can be dealt with by way of a monetary penalty of $5000.

10.  No costs are sought.

Mr Irving submitted that the most appropriate precedent was the case of RIU v Kerr – a positive test at a trials meeting, in which the Committee took a starting point of a $4,000 fine. The Committee in the present case needed to determine whether the Respondent’s previous breach in 2018 was an aggravating factor.

The RIB Penalty Guide (February 2023) suggests a starting point for a second presentation breach.

Mr Irving referred to the very recent case of RIB v O’Sullivan & Scott (March 2024) in which the Respondent Trainers presented a horse to win a race at Ellerslie with the Prohibited Substance, Flunixin, in its system. The Training Partnership, which had previous breaches, was fined $8,000.

SUBMISSIONS OF RESPONDENT

The Respondent said that the positive result had been entirely his own error. He had to give the horse a run, he said, prior to its racing nine days later. He had been told by his Vet that the particular drugs he was using, to clear up a lung infection, had to be given not closer than 8 days prior to racing. He had timed the last treatment to enable the horse to race on 9 February, he said.

The Respondent was frank in admitting that he had taken a chance that the horse would not be tested at the trials meeting. When the horse had been selected for blood testing prior to its trial, he telephoned his Vet, Dr Lindsay Colwell, whose advice was to scratch the horse from the heat, which he duly did. The horse subsequently raced on 9 February, safely outside the withholding period, he said.

The Respondent suggested that the Committee consider the case of RIB v Yesberg (2021). In that case, he said, there were two horses and three Prohibited Substances involved. The Trainer was fined $3,500, he said, but he conceded that it was a first offence.

Mr Irving pointed out that, although this was the Respondent’s second breach, it was the second breach in a period of 34 years involving over 4,000 starters and over 500 wins. Many of the winners would have been post-race swabbed, Mr Irving suggested. In the light of those statistics, Mr Irving submitted, the Respondent’s record was a good one.

REASONS FOR PENALTY

1.  The Respondent took the 6-year-old mare, GLORYS DELIGHT, trained by him, to the Trials Meeting held by North Canterbury TOA on 31 January 2024, to compete in Race 6, Mobile Pace.

2.  The mare had been suffering from a lung infection which had been diagnosed by his Veterinarian who had prescribed Salbutamol and Dexamethasone to be administered in 10 millilitre doses by way of a nebuliser in 2-4 days courses.

3.  The Respondent admitted to administering the last treatment to the mare on 29 January 2024 (two days before the Trials Meeting). He was aware of the withholding periods (4.2 days for Salbutamol and 7 days for Dexamethasone). He explained that he needed to trial the horse prior to its racing on 9 February.

4.  Upon arriving at the racetrack, the mare was selected for blood testing.

5.  Being aware of the likelihood of the horse returning a positive swab to the substances with which he had been treating it, the Respondent, having spoken to his Veterinarian, wisely as it turned out, decided to scratch it from the Trial.

6.  Upon analysis, the blood sample tested positive to the two substances.

7.  The Respondent has held a Trainer’s Licence for 34 years – from 1990 to 1995 in partnership with his father Ron Barron, in 2017 and 2018 with his brother, Ken Barron and in the years in between to the present, on his own account.

8.  Against the background of that lengthy involvement in the Harness Racing Industry as a Trainer, the Respondent’s decision to trial GLORYS DELIGHT at Rangiora on 31 January last, notwithstanding that he knew that he would be presenting the mare not free of Prohibited Substances, was reckless.

9.  In considering penalty, the Adjudicative Committee is required to have regard to the various aggravating and mitigating factors.

10.  That the Respondent was reckless is a significant aggravating factor. By his own admission, cognisant of the fact that when he took the horse to the Trials Meeting, if it were to be blood tested for any Prohibited Substance, then any sample would prove to be positive. He had taken a chance that it would not be so tested. His own words were that he had played “Russian roulette”. The Adjudicative Committee accepts that his motive was not sinister in that he was not attempting to gain any advantage but, rather, he wished to give the horse a trial, as an important step in its preparation for the race 10 days later.

11.  It might also be regarded as an aggravating factor that the Respondent has a previous similar breach on his record – presenting a horse at a Trials Meeting in 2018 with the Prohibited Substance, Flunixin, in its system. The source of the Prohibited Substance could not be established. The Respondent, on that occasion, was fined $3,000, the Committee having found that it was not a case of deliberate administration or poor timing and, therefore, culpability was low. The Adjudicative Committee takes into account the circumstances of that breach and that the breach was 5½ years ago. The Adjudicative Committee does not wish to punish the Respondent twice for that breach. Mr Irving submitted that the Respondent’s overall record should be looked at.

12.  Mitigating factors identified by the Informant are that the Respondent had admitted the breach at the first opportunity and had cooperated throughout the course of the inquiry. Two other significant factors relevant to mitigation are, firstly, that the meeting was only a Trials Meeting and, secondly, that the Respondent willingly withdrew the horse from the trial.

13.  The RIB Harness Racing Penalty Guide (February 2023) suggests a starting point for a second “Presentation Offence” of a “two year disqualification and a fine of up to $20,000”. Mr Irving’s penalty submission of a $5,000 fine reflects that such a starting point, in the circumstances of this case, is entirely inappropriate. Furthermore, whilst the Adjudicative Committee takes the previous breach as an aggravating factor, it does so rather than regard the present breach as a second “Presentation Offence”.

14.  On that basis, the Adjudicative Committee adopts the starting point of a fine of $8,000, being the starting point in the Penalty Guide for a first presentation offence. The Adjudicative Committee reduces that for the fact that the breach occurred at a Trials Meeting. The appropriate reduction is $2,000.

15.  From that adjusted starting point of $6,000, an uplift is called for to take into account the heedless or reckless nature of the breach, and the previous breach which is referred to in para. 11 of these Reasons for Penalty. Any such uplift can be off-set by the mitigating factors the Adjudicative Committee has identified – that is to say, the Respondent’s early admission of the breach and the manner in which he conducted himself during the investigation.

16.  Accordingly, the Respondent is fined the sum of $6,000.

17.  In determining the final penalty, the Adjudicative Committee has had regard to the earlier Decisions referred to by Mr Irving in his Penalty Submissions. In addition, 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, the need to denounce his conduct and 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.

PENALTY

The Respondent, Licensed Public Trainer, Tony Ronald Barron, is fined the sum of $6,000.

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.