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Non Raceday Inquiry RIU v P McKenzie - Penalty and Costs Decision dated 12 October 2020 - Chair, Mr T Utikere

Created on 12 October 2020

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR P McKENZIE

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Informations: A7190/A7191

PENALTY AND COSTS DECISION OF JUDICIAL COMMITTEE DATED 12 OCTOBER 2020

SUBMISSIONS

[1] In the Committee’s Reserved Written Decision of 16 September 2020, the Respondent was found guilty of two breaches of Rule 804(2) of the New Zealand Rules of Thoroughbred Racing. Submissions on Penalty and Costs were sought from both parties, which the Committee has now received.

[2] The RIU has made Penalty Submissions (from Para 6 onwards) in a Memorandum dated 24 August 2020. They rely on four previous cases (Scott v Queensland Racing Integrity Commission (No 2) [2018], RIU v O'Sullivan and Scott [2016], RIU v A Bambry [2017] and RIU v D Caskey [2018]) relating to Cobalt use, and while they have identified the nuances of each case in their submissions, we consider it appropriate to briefly cover the circumstances of each below.

[3] Ms Scott (Scott v Queensland Racing Integrity Commission (No 2) [2018]) was a Harness trainer in Queensland who presented a horse for a race with Cobalt at a level that was in breach of the relevant Australian rule. She was responsible for the decision relating to her horse’s feeding regime, and the horse was given an intravenous dose of a substance that contained Cobalt two days prior to racing. In that decision, the Tribunal noted that irrespective of scientific proof regarding the enhancement of the animal’s performance, the judicial body was entitled to take into account general deterrence considerations.

[4] Messrs O’Sullivan and Scott (RIU v O'Sullivan and Scott [2016]) were a training partnership which presented horses to race with Cobalt at levels ranging from 309 to 640 ug/L on three occasions over a five week period. Whilst there was a possibility that the Cobalt could have been a result of shared trough arrangements, this was a highly negligent approach on their part as they should have been aware of such a risk. The starting point adopted was $23,000 on each charge and after considering mitigation considerations and levels of culpability, the partnership was ordered to pay a total fine of $50,000.

[5] Mr Bambry (RIU v A Bambry [2017]) accepted a breach where he presented a horse to race with a Cobalt level of 173 ug/L. Mr Bambry demonstrated poor judgement in giving the horse additional sachets of a supplement he knew to contain Cobalt. He was also negligent in leaving food that he knew contained such a supplement in the horse’s feed bowl on raceday. After adopting a starting point of $15,000, the Committee applied mitigation with an end result of an $11,000 fine being imposed after taking into account his early admission and clear record. It is also worth noting, as the Respondent has in his submissions during the Hearing, that this Committee is directly familiar with the circumstances of the Bambry case.

[6] Mr Caskey’s (RIU v D Caskey [2018]) breach was considered above mid-range, where he presented a horse to race with a Cobalt level of 375ug/L. This was a result of giving the horse a tonic that he knew contained Cobalt on a raceday morning. Relevant to the Committee’s assessment was that he had been involved in the industry over some time and that as a result he should have been more aware of his responsibility to understand what he was giving his horse. A $10,000 starting point was considered appropriate and after considering his admission, co-operation and record, an $8,000 fine followed.

[7] When considering the applicability of those cases to that of Mr McKenzie’s, the RIU submit that Scott (Scott v Queensland Racing Integrity Commission (No 2) [2018]) confirms that there is a moral blameworthiness on Mr McKenzie’s part. This is because he was solely responsible for the administration of Hemoplex less than one clear day prior to racing.

[8] The RIU submit that Mr McKenzie had presented HAPPY STAR on two separate occasions, with higher than permissible levels of Cobalt; and as such his breaches are more serious than the single breaches of Caskey and Bambry, but less than the O’Sullivan and Scott breaches which involved races over a five week period. They also note that the McKenzie Cobalt levels were at a similar level to that of O’Sullivan and Scott.

[9] The Informant cites that Mr McKenzie’s continued assertions that these charges are not worth pursuing because of the questionable performance-enhancing nature of Cobalt demonstrate a total lack of remorse and indicate a need for specific deterrence. They also note that whilst the Respondent has no previous sanctions for prohibited substance offending, there was a previous misconduct breach in 2013.

[10] The RIU seek a starting point, and end fine, in the range of $12,000 to $15,000. They refer to the JCA Penalty Guidelines which identify a starting point of $8,000 for a first presentation offence, and a fine of up to $10,000 together with a two-year disqualification for a second offence.

[11] In relation to the question of costs, the RIU submitted that it had incurred legal, miscellaneous and other costs which totalled $24,870.89. They submitted that costs should be awarded and that the Committee may properly consider that Mr McKenzie ought to pay an increased proportion of the usual costs award that may follow.

[12] The reason they provide is that the charges were not seriously able to have been defended and that the RIU and JCA were required to expend significant time and resources on material that was irrelevant to the proceedings. The RIU also anticipates that the Respondent would be ordered to make a contribution towards the costs incurred by the JCA. The RIU’s position was that HAPPY STAR should also be disqualified from the relevant races with effect from the date of the Committee’s decision.

[13] Mr McKenzie’s Penalty Submissions seek to relitigate the Written Decision issued by this Committee on 16 September. We obviously will not entertain that as there is a separate process available for either party to pursue in such a situation. Mr McKenzie’s relevant submission relates to the Costs sought by the RIU. He was critical of the lack of detail provided and sought a detailed breakdown of the invoices cited by Ms Smith.

[14] In response, the Committee directed (Minute No. 15 of Judicial Committee Dated 28 September 2020) Ms Smith to provide, for the Committee’s consideration only, more detailed invoices to support the RIU’s position on costs. She has complied with that direction.

REASONS FOR PENALTY

[15] When approaching the issue of penalty, we are cognisant of the previous cases that have been cited. None bear a direct parallel to the current offending, which whilst concerning one horse, occurred on two separate occasions.

[16] Mr McKenzie continues to protest the performance enhancing nature of Cobalt when given the opportunity to make submissions on penalty. Continuing to advocate for that position at this stage of approaching the question of penalty is largely a moot point. He has been found guilty of two separate charges after he injected HAPPY STAR on two separate occasions with Cobalt-containing Hemoplex which resulted from the same feeding regime.

[17] Whilst it appears to have been the same activity or action taken over a seven day period, the consequences were nonetheless different; different sets of connections were disadvantaged from the horse racing with Cobalt in its system at Trentham, then at Awapuni.

[18] We are satisfied that the appropriate penalty is that of a fine. In our view, there are no mitigating factors that justify any significant discount; but we have considered that the Respondent has been a licence holder over many years. We have taken into account the need for general and specific deterrence considerations and whilst these are two separate breaches, when we consider the totality principle and the impact of two separate penalties, we consider it appropriate to impose a $6,000 fine on each charge. This total fine of $12,000 also balances the cumulative effect of the breaches. In fixing penalty, we bear in mind the impact that such a sanction will have upon the Respondent. However, we also bear in mind that such a sanction arises out of Mr McKenzie’s own actions.

PENALTY

[19] Mr McKenzie is fined $6,000 on each charge. Each fine to be cumulative, resulting in a total fine of $12,000.

REASONS FOR COSTS

[20] In determining the appropriateness of making any costs award, the Committee must be satisfied, on the information placed before it, that the costs incurred by a party are reasonable in the circumstances.

[21] The Committee has received and reviewed the detailed invoices. These clearly indicate that the actual cost incurred by the RIU in these proceedings is just shy of $35,000. Our review of the details provided indicates that those are entirely reasonable charges in this circumstance. This indicates that the $24,870.89 costs originally identified by the RIU in their Memorandum of 24 August 2020, is significantly less than what was actually incurred.

[22] The Committee notes that the normal approach to costs would be to order a 60% costs award; but we have determined that an award closer to 50% is more appropriate. Whilst a higher threshold would be justified on this occasion, we are also aware of the cumulative financial effect of the two charges on the Respondent.

[23] Accordingly, we fix the costs award in favour of the RIU at $12,500, bearing in mind this is an amelioration of the standard approach of setting the costs award at that of 60%.

[24] Significant costs have also been borne by the JCA. Those costs total in excess of $20,000. Adopting a similar approach to that outlined in the preceding paragraph, the Respondent will be ordered to pay costs in favour of the JCA; that figure is set at $10,000. In our assessment, this is totally justified given the 15 months of prolonged engagements at the request of Mr McKenzie himself.

[25] While the end financial result is a substantial cost to Mr McKenzie, we are aware that these costs are not indemnity figures and have also moderated the end quantum to reflect this.

COSTS

[26] Mr McKenzie will pay $12,500 costs in favour of the RIU and $10,000 costs in favour of the JCA.

DISQUALIFICATION ORDER(S)

[27] HAPPY STAR is disqualified from Race 6 of the Wellington Racing Club’s Meeting on 8 June 2019 and from Race 7 of the Manawatu Racing Club’s Meeting on 15 June 2019. Both disqualification orders are to have effect from the date of the Committee’s Written Decision; that is 16 September 2020.

[28] Stake monies are to be repaid and redistributed in accordance with the amended placings that will now follow as a result of the disqualifications ordered in para [27] above.

Signed at Palmerston North this 12th day of October 2020.

Mr Tangi Utikere

Chairman

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