Non Raceday Inquiry – Written Reserved Penalty Decision dated 17 April 2025 – Roydon Bergerson

INTRODUCTION:

(1) This is a Written Reserved Penalty Decision arising as a result of issue of Information No. A16880,  which outlined an alleged breach of Rule 804(2).

Particulars of the resultant charge are:

On the 11th of February 2025 at Foxton trials, Roydon Bergerson, Registered Trainer of the horse ‘Asahi’ presented and engaged the horse in the Open Handicap Catchweight 1000m – Heat 2. He failed to present the horse, free of the Prohibited Substance ‘Meloxicam’ in breach of Rule 804(2) and liable to the penalty imposed pursuant to Rule 804(7) and 804(8) of the Rules.

(2) Rule 804(2) provides:

When a horse which has been brought to a Racecourse or similar racing facility for the purpose of engaging in a Race or trial to which the Third Appendix hereto applies is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance, as defined in Part A of Prohibited Substance Regulations, the Trainer and any other person who in the opinion of such Tribunal conducting such inquiry was in charge of such horse at any relevant time commits a breach of these Rules.

 (3) The Penalties for this offence arise under Rule 804(7) and 804(8) which provide:

804(7) A person who commits a breach of sub-Rule (2) or (3) or (4) or (5) or (5A) or (6) of this Rule shall be liable to: (a) be disqualified for a period not exceeding five years; 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 $25,000.

804(8) Any horse connected with a breach of sub-Rule (2) or (3) or (4) or (5) or (5A) or (6) of this Rule shall be, in addition to any other penalty which may be imposed, disqualified from any Race or trial to which the Third Appendix hereto applies and/or be liable to a period of disqualification not exceeding five years.

(4) The Adjudicative Committee was provided with an Authority to Charge dated 17 March 2025 issued pursuant to Rule 903(2)(d). In addition, provided was associated pertinent documentation including the Information (unsigned), Summary of Facts, NZRLS Certificate of Analysis.

(5) A telephone conference was convened on 27 March 2025. The Respondent acknowledged receipt of all necessary documentation and confirmed admission of the breach. A Minute was issued by the Adjudicative Committee seeking submissions as to penalty by 3 April 2025 . Written submissions were received from both the Informant and Respondent. A  penalty hearing was scheduled for, and held on, 8 April 2025 at Manawatu Raceway.

(6) The Respondent declined the opportunity to appear at the hearing.

SUMMARY OF FACTS:

Salient details are as follows:

(7) The Respondent in this matter Roydon Bergerson is the holder of a Class ‘A’ Trainers Licence issued by NZTR. ‘Asahi is a 6 year old gelding (Stable name – Kobe) trained by the Respondent.

(8) On 11 February 2025, ‘Asahi’ participated in Heat 2 at the Foxton Trials an Open Handicap Catchweight 1000m, in which he finished last.

(9) On 11 February 2025, ‘Asahi’ was one of several horses selected for Prohibitive Substance testing.

(10) At 9.45am, a blood sample was taken by a veterinarian with the appropriate paperwork signed by Mr Bergerson.

(11) On 21 February 2025, the New Zealand Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing the sample obtained from ‘Asahi’ on 11 February 2025 was positive to Meloxicam. The Certificate noted that the sample ‘was shown to exceed the 1.0 micrograms per litre regulatory limit’.

(12) Meloxicam is identified within the NZTR Prohibited Substance Regulations for the Rules of Racing (Specifically Clause 4 and 4.2.3) where it is excluded from the list of Prohibited Substances when present at a concentration that is at or below 1.0 micrograms per litre in plasma. Meloxicam is listed on the NZEVA Period of Detection List as having a ‘possible’ withholding time of 4.2 days and detection time of 3 days.

(13) On 24 February 2025, the Respondent was interviewed by the RIB.

(14) During his interview, Mr Bergerson provided a full and frank admission, acknowledging he had administered the Meloxicam. He advised that on 27 January 2025, the horse had 4 back teeth removed. He administered Meloxicam to address any pain that may have arisen as a result of the extraction.  This included 10mls administered on Sunday 9 February 2025. At this point, there was an intention to start ‘Asahi’ at New Plymouth on the 14th of February 2025. There was a last minute decision not to start at New Plymouth and instead take the horse to the Foxton Trials on 11 February 2025. He was aware the horse was medicated and inside the withholding period.

(15) The stable equine dentist confirmed that he treated horses at the stable on 27 January 2025, however was unable to provide the names of horses treated. He confirmed that he did not remove four back teeth from any of the horses, however did remove wolf teeth from a number.

(16) Mr Bergerson’s treatment book recorded an entry ‘Melox Kobe’ on Sunday 2 February 2025. A corresponding entry for 9 February 2025 does not exist.

DECISION:

(17) As the charge has been admitted, it has been proved.

SUBMISSIONS AS TO PENALTY – INFORMANT:

(18) A Written Penalty Submission was provided by Ms Murrow on behalf of the Racing Integrity Board.

(19) The RIB submitted that the penalty in this case, reflecting the Penalty Guide along with identified mitigating/aggravating factors, be a fine of $8,000.

(20) In support of the aforementioned, the submission referred to precedent as follows:

RIB v Walker (June 2023) – $7,000 fine (positive to Meloxicam)

RIB v Lucock and Gillespie (July 2018) – $2,800 fine (positive to Meloxicam)

RIB v Pertab (March 2019) – $3,000 fine (positive to Meloxicam)

(21) Mitigating factors identified include acknowledging that Mr Bergerson admitted the breach at the earliest opportunity.  It was also noted that the positive arose at a trial, rather than race day, with no impact on connections. Mr Bergerson has an extensive history in the industry, with the only historical breach being in 1999 (detail not provided).

(22) Aggravating factors include, that by his own admission, Mr Bergerson made a conscious decision to trial ‘Asahi’ whilst medicated. Trialling a horse whilst medicated has serious implications on the integrity of the Racing Industry. Such practices can conceal underlying injuries, thereby elevating the risk of accident and/or injury for horse and Jockey. It is also contended that horses are assessed for sale based on trial results, with a possible medicated enhanced performance undermining the integrity of the industry.

SUBMISSIONS AS TO PENALTY – RESPONDENT:

(23) A Written Submission was received by the Respondent.

(24) The Respondent noted that he has an excellent record covering a lifetime of racing thoroughbreds. He has cooperated with the enquiry since first advised of the positive test. Meloxicam was used due to the horse being treated by the horse dentist, he had the best interest of the horse front of mind and had no intention of the horse’s performance to be enhanced by the use of Meloxicam.

(25) The Respondent acknowledged the Racing Penalty Guide and submitted that it is as exactly as it reads, ‘a guide’. It was contended that the other penalties put forward by the RIB (namely Pertab and Lucock/Gilliespie) are far more realistic, as it related to (in both cases) trials.

PENALTY DETERMINATION:

(26) In determining penalty, the Adjudicative Committee is required to suitably deliberate upon the Summary of Facts, respective submissions along with precedent.

(27) Penalty imposed must reflect the serious nature of the offence. It is well documented through previous Adjudicative Committee decisions relating to like offences, that it remains the absolute liability of Trainers to present horses free of Prohibited Substances. Certainly this Adjudicative Committee agrees. However, where difficulty does arise with Meloxicam, is that it is not prohibited when present at, or below, defined limits (urine and plasma).

(28) In referencing precedent, it is accepted that in each case, penalty was set dependent upon individual circumstance, including aggravating/mitigating factors.  In addition to the foregoing cases, the Adjudicative Committee has referenced the following:

RIB v Campbell (August 2021) – $2,500 fine (positive to Dexamethasone)

RIB v Yesberg (August 2021) – $3,500 fine (positive to various Prohibited Substances)

RIB v Miller (June 2023) – $3,500 fine (positive to Diclofenac)

(29) Both Pertab and Lucock/Gillespie are of assistance, given they represent presentation of horses to trials evidencing Meloxicam. However, in both cases, the Committee acknowledged and imposed penalty reflecting an ‘honest mistake’ or cross contamination.

(30) Walker is of interest, to the extent it reflects a positive to Meloxicam. However, circumstance is different, as the positive followed Tokyo Tycoon’s first placing in the Group 1 Sistema Stakes. In determining penalty, the Adjudicative Committee in that instance, acknowledged this as an aggravating factor, whilst also reflecting that the horse was presented as a result of a mistake on the part of one of the Respondent’s employees.

(31) Campbell relates to a positive returned following a trial. In this instance, the Respondent had applied ointment to treat a swollen eye, claiming that if he had known it was ‘swabable’, it would not have been applied. Although not specifically accepting this assertion, the Committee does reference the Respondent’s actions reflecting a degree of negligence.

(32) Yesberg does offer assistance. It relates to presentation of two horse to the Harness trials at Ashburton. Both returned positive swabs to Phenylbutazone, Oxephenbutazone and Ketoprofen (Furosemide was also evident in 1 of the horses). Mr Yesberg acknowledged that he knew of the relevant withholding periods and yet elected to start the horses. He maintained that this decision was ‘last minute’. There was an intention to start the horses at a later date, however the weather forecast influenced his decision to start at Ashburton. The Committee referred to this action as negligence.

(33) Miller is of interest. It relates to a positive to Diclofenac, following the Respondent’s horse competing in and winning a Race at Whanganui in February 2023. The horse was subsequently disqualified. The Adjudicative Committee in fixing penalty, acknowledged the positive result had occurred as a result of carelessness through excessive application.

(34) In determining current penalty, the Adjudicative Committee does recognise somewhat of a ‘disconnect’ between the Penalty Guide starting point at $8,000 (Presentation – first offence) and those penalties imposed over recent years in relation to ‘like’ offences. Ultimately, penalty must be imposed reflecting consistency and fairness, whilst also recognising limitations imposed by Rule 804(7).

(35) In setting penalty, the Adjudicative Committee must recognise that Mr Bergerson did elect to start Asahi at the trials, knowing that Meloxicam had been medicated and that a swab may produce a result above the permitted level. This fact is not evident in precedent cases and is seen as an aggravating factor.

(36) The Adjudicative Committee does concur with the RIB’s assertion, that knowingly sending a medicated horse to the trials, does create safety concerns for both horse and Jockey/Jockeys.  Submissions assert that the horse was medicated to alleviate ongoing pain and implications resulting from the extraction of teeth. This may well be correct. However, the consequence is that administration of the substance may mask a serious unidentified physical problem, which could manifest itself on race day.

(37) The RIB does suggest that the integrity of racing can be undermined, in circumstances where a horse is medicated in an attempt to enhance its trial performance, thus looking to improve its value. Whilst this may be correct for an untried horse, the Adjudicative Committee does not see this as a factor in this circumstance.  Asahi is a modestly performed 6-year-old gelding. The Adjudicative Committee accepts Mr Bergerson’s comment, that there was no intention to enhance the performance of the horse.

(38) Mr Bergerson did admit the breach at the earliest opportunity. His record is commendable. The RIB did note an historical breach in 1999.  Detail around this breach is not available, and whilst given the passage of time, is deemed to be of little consequence in this matter. What has come to light, is the lack of detail evident in the stable record treatment book. Mr Bergerson is to be furnished with a warning, reminding him of his obligations in this regard.

(39)  On balance and with regard to submissions presented to the Adjudicative Committee, a fine of $4,500 is imposed.  Precedence indicates parameters of $2,800 to $3,500, with an uplift imposed, reflecting the Respondent starting Asahi at the trials at Foxton on 11 February 2025, when fully aware that his charge had been treated with Meloxicam.

(40) Pursuant to Rule 804(8), Asahi is disqualified from the pertinent 1000m Open Handicap Catchweight trial at Foxton on 11 February 2025.

PENALTY AND COSTS:

(41) A fine of $4,500 is imposed as penalty.

(42) The RIB does not seek costs. Given that the hearing took place on a race day, no award as to cost is made.