$14,000 per 1.7mmol/l - has Noel McCutcheon found his calling as a Legal Eagle?

[Chief Stipe]

Non Raceday Inquiry – Written Decision dated 16 April 2022 – Scott Dickson

ID: RIB8623

Respondent(s):
Scott Dickson - Trainer

Applicant:
Mrs G Murrow - Investigator - RIB

Adjudicators:
N McCutcheon (Chair), N Moffatt

Persons Present:
Nil - on the papers

Information Number:
A16854

Decision Type:
Adjudicative Decision

Charge:
Presenting a horse to race with an elevated total carbon dioxide level in excess of the level set by HRNZ

Rule(s):
1004(A)(3)

Plea:
Admitted

Animal Name:
EL DORADO

Race Number:
R4

Hearing Date:
16/04/2022

Hearing Location:
On the papers

Outcome: Proved

Penalty: Trainer Scott Dickson was fined $14,000

FACTS

1. The Informant, the Racing Integrity Board, has laid one Information with respect to Mr Dickson.

2. Information A16854 alleges on 23 February 2022, Scott Dickson, the Registered Trainer of the standardbred EL DORADO attended the HRNZ Race Meeting at Hawera.

3. EL DORADO competed in Race 4, the Revital Fertiliser Taranaki Cup Mobile Pace, where he finished last after galloping.

4. EL DORADO was selected as one of eight horses to be pre-race Tc02 blood tested.

5. His result returned an elevated total carbon dioxide level of 37.7mmo/l. This is in excess of the level of 36.0mmo/l set by HRNZ.

6. This result shows the horse was not presented free of a prohibited substance, namely bicarbonate or another alkali substance.

7. Mr Dickson is therefore in breach of the Prohibitive Substance Rule and is subject to the penalty or penalties which may be imposed pursuant to Rule 1004D(1) of the said Rules.

8. Rules

1004A(3)

A horse shall be presented for a race with a total carbon dioxide (Tc02) level at or below the level of 36.0 millimol per litre in plasma.
(6) a breach of sub-rule (2)(3)(4) or (5) is committed regardless of the circumstances in which the Tc02 level or prohibited substance came to be present in or on the horse.

1004D(1)

A person who commits breach of rule in Rules 1004A 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.

9. A teleconference was held on Monday 28 March 2022.

10. Following questions in relation to the charge, where it was established that it was a matter of presentation only, Mr Dickson admitted the breach of the said Rule/s.

11. Mrs Murrow agreed to have the RIB penalty submissions with the RIB Acting Registrar, no later than 4.00pm on Wednesday 30 March 2022.

12. On 4 April 2022 Mr Dickson stated that he was happy for the matter of penalty to be decided on the papers.

13. RIB PENALTY SUBMISSIONS

1. Introduction:

1.1 The Respondent, Scott George Dickson is a Licensed Public Trainer under the New Zealand Rules of Harness Racing.

1.2 He has held a HRNZ drivers’ licence since 1996 and a trainer’s licence since 2002 and currently trains from his property near Marton.

1.3 Mr Dickson faces one information alleging he has committed an offense contrary to Rule 1004A (3) of New Zealand Harness Racing incorporated Rules of Racing (HRNZ).

1.4 Mr Dickson has entered a guilty plea to this charge.

2. Offending:

2.1 The summary of facts is attached. Salient points are highlighted below.

2.2 On the 23rd of February 2022, Mr Dickson presented his horse ‘El Dorado’ to the Hawera races. El Dorado competed in race 4, the Revital Fertiliser Taranaki Cup Mobile Pace. El Dorado was selected as one of eight horses to be pre-race TCO2 blood tested.

2.3 On the 28th of February 2022, the New Zealand Racing Laboratory reported that the blood sample Reference Identification Number: 58027 returned an elevated total Carbon Dioxide level with a recorded result of 37.7mmol/L. This exceeds the accepted level of 36.0 mmol/L set by Harness Racing New Zealand.

3. Penalty: Purpose and principals

3.1 The penalties which may be imposed are fully detailed in the Charge Rule Penalty Provisions document.

3.2 The relevant purposes and considerations are helpfully stated in the Appeals Tribunal decision in RIU v Lawson (13th May 2019):

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 regularity tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member….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.

3.3 The principles of sentencing relevant to this charge can be summarised briefly:

-Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.

-In a 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 Committee for the type of offending in question.

-The need to rehabilitate the offender should be considered.

Public Interest

3.4 The importance of racing being a clean sport must be taken into consideration.

This was demonstrated in Bentley 1998: –

“Because of the financial investing interests of the public in horse racing the integrity of the sport requires that the Rules of racing have to be complied with to ensure fair competition. Fair competition requires that horses that are competing are free from any potential advantage”.

Interests of the professional body

3.5 Offending of this nature carries with it the significant risk of adversely affecting the interests of the professional racing body. In Keast and Westrum 2014 in was noted, “the penalty imposed needs to be one that provides a general deterrence to other trainers that might be like minded to act”.

3.6 In Scaife 2012 it was noted:

“It is imperative for the future of the industry that racing be perceived to be, and indeed is drug free””.

4. RIB’s position as to penalty

4.1 1004D (1)

A person who commits a breach of a rule in rules 1004A, 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.

4.2 The RIB believes that an appropriate penalty for this breach is a significant fine, however a period of disqualification will need to be considered by the committee. It is acknowledged that the JCA Penalty Guidelines from 2015 detail a starting point for HRNZ breach of the TCO2 Rule ‘second offence’ is a two-year disqualification and a fine of up to $10,000. It is the RIB submission that the penalty guidelines and the rule do not correlate. These guidelines are currently being reviewed and offer little assistance to the committee.

4.3 The prescribed threshold for TCO2 was increased from 35.0 to 36.0 mmol/L on 09 October 2014. At the time of the increase the HRNZ Board made it clear that there was a “firm expectation” that it expects a “stiffer regime of penalties” for subsequent breaches of the new threshold and that in their opinion the current penalties were insufficient.

4.4 It is submitted that a period of disqualification may be difficult to manage and enforce in Mr Dickson’s case as his partner is also a licensed thoroughbred trainer. They both train exclusively from their own training track and facilities. Rule 1303(1)(b) details that a disqualified person may not train, assist, or be involved in any capacity with breaking or gaiting a horse; and Rule 1303(1)(f) – may not, without written consent of the Board, enter upon the stable area of any licensed person.

Comparable Cases

There are limited comparable cases prior to the increase in the threshold level and the establishment of the JCA Penalty Guidelines in May 2015.

RIU V Keast and Westrum – 2014

4.5 The respondents were charged with a breach for rule 1004 1 (A), of The New Zealand Harness Rules of Racing. This was a second offence. There have been no other comparable second offences.

4.6 The horse “Westburn Creed” was taken to the Kaikoura Trotting Club for the purpose of engaging in race 4, the Speights Mobile Pace. They failed to present the horse free of the prohibited substance, namely bicarbonate or other alkali substance as evidence by a blood TCO2 level of 36.2 mmol/L.

4.7 The tribunal; observed the following: –

“this was a second breach of the prohibited substance rule where the respondents had failed to put in place appropriate standards of control and security over the horse an appropriate starting point was 6 months disqualification”.

We do not accept Ms Thomas’s submission that because there is no evidence (nor we add charge) of intentional administration that general or specific deterrence are not legitimate purposes for imposing penalty in this case. We believe the imposition of solely a financial penalty would not be a sufficient deterrent where the repeated breach is so close in time to the earlier breach.

We believe an appropriate penalty or starting point before a discount for the admission of the breach is an eight-month suspension and a fine of $3000.

The courts give a discount of 25 per cent for an early guilty plea. A discount of this magnitude is appropriate in this case.

We impose a six-month suspension and a fine (rounded down) of $2000. This suspension applies only to the respondents’ public trainers’ licence”.

RIU V Dickson – 2018

4.8 This case was Mr. Dickson’s first offence. On the 1st of May 2018, Mr. Dickson the trainer of Magical Moe raced in Race 5 at the Wairarapa Harness Racing Club. He failed to present his horse free of prohibited substances, namely bicarbonate or other alkali substance as evidence by a blood TCO2 level of 39.2 mmol/L.

4.9 The level of 39.2 mmol/L was observed by the committee to be at the higher end of the scale. This was supported by the reading being the highest TCO2 level in 17 years.

4.10 Mr. Dickson was initially fined $12000 this was reduced to $9200 on appeal.

The committee advised: –

We are satisfied that the Judicial Committee was in error in adopting a starting point at this high a level, as this would only be appropriate were the breach to be within the most serious or worst example of its type.

While the TCO2 level is very high, we are not of the view that the breach falls within the description of the worst example of its type.

4.11 In this case the RIU submitted that a period of suspension or disqualification was practically unenforceable due to the unique training environment of Mr. Dickson and his partner Ms. Pickford a NZTR registered trainer as mentioned in paragraph 4.4. They train their own horses from their home address. To be suspended or disqualified Mr. Dickson would need written consent of the board to enter his own property, that of a licenced person Ms Pickford.

RIU V Edge and Burrows – 2019

4.12 On the 19th of September 2019, the Respondent, Mr Edge, was the trainer of the standardbred ROYAL JESTER which had been taken to the New Zealand Metropolitan Trotting Club for the purpose of engaging in Race 1, Horse Solutions & Glenwillow Feeds Mobile Pace. Mr Edge failed to present the horse free of prohibited substances, namely bicarbonate or other alkali substance, as evidenced by a blood TCO2 level of 37.4 mmol/L, in breach of Rule 1004A (1), (2) & (3).

4.13 This elevated level resulted from lack of communication between the trainer and his staff member, the consequence being that the horse had received doses of potassium citrate in the days leading up to the race, and on race day.

4.14 In deciding the penalty for this case the committee stated the following: –

Most of the penalties in previous TCO2 cases are historic and predate the Penalty Guide provisions. The Informant has submitted that a fine is the appropriate penalty provided the Respondents have provided information to us that they have “modified their practices” to prevent any recurrence of what happened or anything similar. We are satisfied that they have done so.

The Committee notes that penalties for recent TCO2 breaches (since 2012) have ranged from $1,200 to $4,500, other than for a couple of cases in which the circumstances were exceptional and the penalties handed down were more severe. We are guided by the penalties of between $1,200 and $4,500 but have also had regard to the increase in penalty in the Penalty Guide since those penalties and the new approach to penalties by racing Judicial Tribunals on a disciplinary basis”.

4.15 Mr Edge admitted the breach and was fined $4000.

RIB V Boyle – August 2021

4.16 Boyle relates to a TCO2 breach under the NZTR rules. “On the 29th of June 2018, Michael Francis Boyle, being the registered Trainer of the Thoroughbred LORD BEAVER presented the horse to race in Race 3, the Otago Farm Machinery Rating 75 Benchmark, at the Otago Racing Club’s meeting at Wingatui with a prohibited substance, namely total carbon dioxide (TCO2), in its system in excess of 36.0 mmol/L of plasma of 38.9 mmol/L.

4.17 The committee stated: –

“The fact there had been no elevated TCO2 since 29 June 2018 was viewed as supporting the inference that steps had been taken to ensure the breach had not been repeated. The Informant produced a comprehensive list of penalties imposed for a breach of the Rules relating to TCO2. These penalties ranged from a fine of $500 to one of $9,200.

The RIB submitted the facts in the present proceedings were not dissimilar to Dickson where the fine was $9,200. The level in the present case and in Dickson was said to be high, and in both proceedings the Respondent had no prior breach of the rules.

Dickson was a Harness Racing case. Although the NZTR rules have a higher maximum fine ($25,000) than in Harness Racing ($20,000), culpability was submitted to be broadly comparable.

The RIB submitted a fine of $8,000 was appropriate.

The JCA Penalty Guide (1 August 2018) has a starting point of $8000 for a first presentation breach. The high-level in this case merits a 30% increase to $10,400. This is less than the 40% in Dickson, which the Informant has identified as a comparable case.

The reduction for personal mitigating factors in Dickson was one third, which was approved by the Appeals Tribunal. A similar discount is appropriate in this case. That leaves a penalty rounded down to $6,850”.

5. Mitigating Factors

5.1 Mr Dickson is adamant that he did not administer any alkalinising agent to El Dorado and has no idea how the positive could have occurred.

5.2 Mr Dickson’s partner Lydia Pickford, a licensed thoroughbred trainer, is responsible for feeding all horses on their property. Several feed supplements were taken for analysis, all returned results negative to alkalising agents.

5.3 A blood sample was also taken from El Dorado on the 2nd of March 2022, by Veterinarian John O’Brian and sent to New Zealand Racing Laboratory Services. This returned a reading of 34 mmol/L.

5.4 Five of Mr. Dickson’s horses have been race day tested subsequently. The results range from 29.7 to 33.2 mmol/L.

5.5 Mr. Dickson did not wager on El Dorado and there were no unusual bets associated with the horse or the race.

5.6 Mr Dickson has been fully cooperative throughout the investigation.

6. Conclusion

6.1 The offending differs from those cited above in that it is the first case of a second breach of TCO2 since the level changed in 2015.

6.2 Mr Dickson received a Fine of $9200.00 for his first breach on appeal and any subsequent penalty must be significantly higher than this.

6.3 Mr Dickson has maintained there has been no deliberate breach and has been cooperative, nevertheless the charge is one of strict liability.

6.4 It is the RIB position that the Committee adopts a starting point of $15,000 with due consideration given to a period of Suspension or Disqualification.

14.0 RESPONDENT MR DICKSON’S PENALTY SUBMISSIONS

I, Scott Dickson, accept El Dorado was presented to race at Hawera with an elevated TCO2 reading.

I am at a loss to explain what has caused the increased level. The horse was definitely not administered anything of any sort on the particular Raceday and to my knowledge only ingested his usual morning feed. I can only assume he was affected by dehydration in which we had been battling with most of our horses due to the hot humid weather during the summer months. It also became apparent following the race El Dorado was showing signs of a possible virus. The horse unusually seemed ‘nervous’ on arrival to Hawera also indicating he was not right. We did not get El Dorado vetted, instead opting to spell him and not waste more money.

Notably he recorded a reading of 34 when tested a week later when turned out. I consider this to be very high for a horse who is turned out/spelling?? So clearly something must have been amiss with the horse…

I fully accept a penalty is necessary.

And I realise this is a 2nd offence but believe I was extremely harshly penalised for a first offence compared with others similar cases at the time. Namely the ‘Boyle’ case in which fined $6850 and the ‘Edge’ case fined $4000.

This particular case is in line (with a very similar level) to the Alan Edge case.

Due the fact this is a 2nd offence of the rule, I expect the penalty will be higher but should be guided more off the Edge fine, rather than my own 1st time fine.

A suspension/disqualification would severely impact the management of my farming business.

15.0 REASONS FOR PENALTY

15.1 The Adjudicative Committee took the following matters into account when considering penalty.

15.2 The penalty submissions of the Applicant and Respondent.

15.3 The fact that the breach was the second time the Respondent had presented a horse for racing with a prohibited substance in its system. The first occasion being on or about 1 May 2018. At a subsequent hearing Mr Dickson was fined $12,000. This amount was reduced to $9200 on appeal.

15.4 That it was a charge of presentation only as per Rule 1004A (3). Rule 10044A(6)(6) makes it clear that it is a case of strict liability regardless of the circumstances.

15.5 The admitted breach.

15.6 Other penalties imposed for breaches of the Rule.

15.7 The deterrent factor.

15.8 The need to protect the profession and the public and to promote confidence in the integrity of the profession.

15.9 It is imperative that all participants with horses, present those horses for racing free of any prohibited substance to ensure that all compete on a level playing field.

15.10 The sentencing principles.

15.11 The aggravating and mitigating features.

16.0  The Adjudicative Committee did consider disqualification or suspension as a penalty. However due to the partner of Mr Dickson being a Licensed Thoroughbred Horse Trainer, and that they both run a farm and train their horses on a private track, a term of disqualification would prove difficult to enforce.

It is the Adjudicative Committee’s opinion that any form of suspension, would only prevent the Respondent from racing horses in his name as the Trainer, but he would be able to carry out all other aspects of the business, and as such, a suspension was deemed an unsuitable penalty.

Under all of the circumstances encompassing the charge, it was determined that the matter could be adequately dealt with by way of a monetary penalty.

After taking into consideration all matters alluded to, a starting point of $15,000 was adopted. As it would have proved nigh on impossible to successfully defend the charge, a minor discount of $1000 was afforded for the breach being admitted.

17.0 PENALTY

Mr Scott Dickson was fined $14,000.

18.0 COSTS

As the admitted breach was considered on the papers there was no order for costs.