RACING APPEALS TRIBUNAL NEW SOUTH WALES

Transcription

1 RACING APPEALS TRIBUNAL NEW SOUTH WALES TRIBUNAL MR DB ARMATI EX TEMPORE DECISION FRIDAY 3 FEBRUARY 2017 LICENSEE REX JONES GREYHOUNDS AUSTRALASIA RULE 83(2) SEVERITY APPEAL DECISION: 1. Penalty varied to 12 months disqualification percent of appeal deposit refunded 1

2 1. Licensed trainer Mr Rex Jones appeals against the decision of the stewards of 30 November 2016 to impose upon him a period of disqualification of his trainer's licence of 60 weeks. 2. That decision was conveyed to him in a written decision of that date. There was no hearing. The stewards' inquiry was determined on the papers. As is the case with matters determined on the papers, the appellant was provided with the appropriate evidence and, as is the present practice, provided with a written opportunity to enter an admission of the breach or otherwise with a description of a possible penalty to be imposed and an invitation to make submissions. The appellant availed himself of the opportunity to make submissions through his solicitor, Mr Cockburn, and did so. In doing so, he entered a plea of guilty, as it was termed, to the stewards and he has, on the presentation of this appeal, at all times accepted the breach of the rule. This appeal, therefore, is a severity appeal only. 3. The material provided to the stewards essentially comprises the majority of the evidence. In addition, in this hearing, for the respondent, the Tribunal has been given a statement of Mr Paul Zahra of Racing Analytical Services Ltd; Dr Steven Karamatic, the Regulatory Vet for Greyhound Racing Victoria; the out of competition testing of the subject greyhound Cosmic Topper, which took place at or about 15 July 2016, and the analytical results; together with the licence history. On behalf of the appellant, the references of Sinotti, Pitt and Ross, previously provided to the stewards, were put before the Tribunal and the appellant gave evidence. 4. The stewards particularised the breach of Rule 83(2) as follows: "That you, Rex Jones, a registered trainer, while in charge of the greyhound Cosmic Topper presented the Greyhound for the purpose of competing in Race three at Gosford on 24 May 2016 in circumstances where the Greyhound was not free of any prohibited substance." The prohibited substance was particularised as ostarine. 5. The drug ostarine is a SARM. It is a prohibited substance, and there is no dispute about that. It is a permanently banned prohibited substance, and there is no dispute about that. The rules of racing provide in Rule 79A(2) for a number of substances to be permanently banned prohibited substances. As the rule is presently drafted, there are 20 subcategories. Relevantly to the drug ostarine, it falls within category (ix) in sub rule (2) as this: "Selective receptor modulators including but not limited to selective androgen receptor modulators (SARMS), selective estrogen receptor modulators (SERMS), selective opiate receptor modulars (SORMS) and selective glucocorticoid receptor agonists" for which there is no acronym. 6. The first of those, a SARM, is what is relevant here. The drug itself is dealt with by the Tribunal, as it was before the stewards, for the first occasion under the regulator Greyhound Racing NSW's ambit. It is noted in Dr Karamatic's report that the 2

3 possession of ostarine without authority is illegal under the Poisons Standards. He states that no Australian Pesticides and Veterinary Medicines Authority registered products contain ostarine. He states that no Therapeutic Goods Administration human registered products contain ostarine. 7. He says it is an agent in clinical development for prevention and treatment of muscle wasting in patients with cancer. He says it is a new class of non-steroidal tissue-specific anabolic agent that has the potential to increase lean body mass and hence muscle mass and physical function without the untoward side-effects seen with traditional anabolic agents such as testosterone. He continues that "it is capable of having the anabolic (e.g. tissue building) effects without the noticeable androgenic (e.g. aggression) effects of anabolic androgenic steroids". He says the use of anabolic agents can give an unfair performance advantage to treated dogs by increasing muscle mass and increasing endurance of the greyhound. 8. He noted research in respect of the intravenous administration of the drug to horses as being detectable in urine for three hours post-administration but no longer at six hours, and the metabolites detected for longer periods. There is no evidence of the presence of metabolites in either of the two tests conducted on Cosmic Topper. 9. The appellant, in his submissions to the stewards to indicate the ready availability of the particular drug put in evidence extracts downloaded from the Internet. Essentially, those extracts do not take the relevant evidence as to the categorisation and the effects of this drug beyond that which Dr Karamatic has indicated. There was a report under the title "Evolutionary" and entitled "MK-2866 (Ostarine) Profile", which refers to it being developed about 2009 to fight muscle wasting diseases, and describes in an ongoing fashion how it has an effect and, importantly, confirms that it is quite beneficial in healing and perhaps preventing injuries in tendons, bone and ligaments. And, further, that it has a 24-hour half life. The formalities of the drug and its status is confirmed by Mr Zahra in his report which is that it is a SARM amongst a group of non-steroidal compounds with anabolic effects, and notes those specifically listed under GAR 79A(2)(ix). 10. The scientific analysis which was undertaken and put to the appellant about the subject race day sample simply referred to a finding of ostarine, and that was confirmed by ARFL. The out of competition testing of July 2016 for the subject dog did not detect a prohibited substance but did report that trace levels of ostarine were detected. The expert evidence does not indicate what conclusion should be drawn from a trace element detection in out of competition testing but it does seem to imply that between May 2016 and July 2016 there was some continuity of the presence of ostarine and its use because, if it only has a 24-hour half life and in any event would only be detectable in a horse for up to six hours, it is difficult to see how in a greyhound of much lesser mass it would still be present after two months. But, as has been said, there is no evidence. 11. The appellant says he does not know how, when, why or by what route the drug came to the present in the subject dog at the presentation. That is not unusual. As the Tribunal has said on many occasions, that is the usual evidence that the 3

4 stewards and the Tribunal, when it deals with appeals, receive. There is a total lack of explanation here, not even a hazarded guess. 12. A kennel inspection was conducted and nothing likely to equate to the particular substance was found. There is reference in the kennel report to Peking Panax ginseng extract, but the evidence does not establish that that has anything to do with the presence of ostarine in the subject dog at the presentation. It is to be noted in passing it was not the subject of a matter put to the appellant by the stewards as a breach of the rules and nor is it before the Tribunal that it appears that ginseng was administered on race days in any event. But that can be entirely disregarded because ginseng is not evidentially established to be linked to ostarine. 13. The drug itself must be seen as a matter of considerable concern so far as the integrity of the industry is concerned. It is not specifically named in the rule 79A or in the definitions of prohibited substances but is specifically caught, as is the case, and not in contest, by 79A(2)(ix). It is a SARM. There is no place for SARMs. They have been designed to avoid the anabolic steroid-type effects and are a manufactured illegal substance illegal not only under the Greyhound Racing Rules but under numerous rules that apply to everyone in the community under the Poisons Act and the like. There is no place for them in kennels or any association with a greyhound, accepting there is no evidence of the presence of the drug at the kennels. The point of those remarks is to reflect upon the seriousness of a breach of 79A(2), particularly in relation to a SARM. 14. As a result of a number of matters, in October 2012 the regulator introduced the penalty guidelines. They have been assessed by the stewards, consistent with Tribunal decisions since, as being guidelines and not tramlines. Indeed, the Tribunal will turn in this case to a strong challenge effected here to how the particular drug should be categorised and penalties determined. Suffice it to say that the appellant as a licensed person accepts that the rules apply to him and accepts, as he has said quite clearly in his evidence, that he has a duty to comply with those rules. And those rules, as broadly embraced, must be considered to incorporate the penalty guidelines. Without repeating the ad nauseam remarks by this Tribunal over the years, the Tribunal will not ignore them in this or the other codes because giving credence to them provides an aspect of certainty to the stewards and the regulators generally, as it does to those who might consider that they could fall into breach of the rules by indicating to them what likely penalties might be considered. In addition, it provides an element of certainty to all those who are associated with the industry. 15. In determining penalty here, the Tribunal is not bound to follow the guidelines. It has to determine a penalty consistent with its functions in a civil disciplinary matter looking to all the evidence it has today and looking to the future as to what message must be given to this appellant, to the industry generally and to the community at large of what consequences will flow from the presentation of a dog to race with ostarine in it. That consideration that message will be taken into account when the Tribunal will return to the issue of subjective factors. 16. Regardless of that, as has been said for many years in this Tribunal, if the objective seriousness of the conduct which is being dealt with warrants a particular 4

5 penalty, then in appropriate cases that civil disciplinary penalty should not be unduly reduced purely by a consideration of subjective matters. It would, to do so, not provide the appropriate message to which reference has been made. 17. This is a severity appeal. Grounds of appeal addressed aspects of severity. The first of those grounds, excessive, is by way of guidance and submission only because this is a de novo hearing and it is a matter for the Tribunal to determine penalty for itself. It is suggested that undue weight was given to the categorisation of the substance, the lack of antecedents, the personal and financial hardship and on issues of parity. The Tribunal will turn to each of those. 18. The subjective circumstances of this appellant were given to the stewards and essentially they are the same as the evidence which the appellant gave to this Tribunal. 19. He was first licensed as a trainer in The evidence appears to establish that he was a licensed owner from about 1991 but there is no evidence to establish any categorisation higher than ownership prior to It is not necessary to examine the evidence in detail that he gave to support that finding. It is not disputed. It is also accepted that as a licensed owner the duties that befell him and the requirement for compliance with the rules is much less than that which applies to a trainer or, indeed, to other licensed persons. The exposure, therefore, to possible non-compliance with the rules is less. In essence, therefore, in looking at his licence history, the Tribunal will have regard to the fact that he has been associated with the industry since 1991 but only critically so since Therefore, a period of some 17 years is the critical assessment when it comes to issues of parity. 20. He gave evidence in respect of his personal living circumstances at the moment. He is a full-time carer for his mother who has early stages of a disability, to protect her privacy. He is the lone family member remaining to look after her on her property. He, of his own volition, moved from his training premises elsewhere some two years ago and set himself up as a trainer on his mother's property which involved the installation of kennelling, partitioning and the like, and also the installation of equipment associated with training, such as washing machines, hydro-baths and the like. 21. As a trainer he has had, it has to be said, limited involvement. He has had, over the years, some 60 dogs and has trained some 40 of them. Over that time he has presented over 100 times. He has had some 8 to 10 swabs. This is his first prohibited substance matter. He has had one fine in recent years of $100 and he is uncertain what that was for and it can be entirely disregarded, and it is. He is assessed on the basis that his past history has no relevant matters which might be a cause of concern to how he might react in the future. 22. It has already been noted that he is entirely unable today to explain what happened. It makes, therefore, his undertaking to the stewards, given in his apology to the stewards, which they had before them and which is before this Tribunal, of less weight on his capacity to change his husbandry practices in the future by reason of removing likely causes of the presence of this prohibited substance such that 5

6 there will not be a recurrence. That is a harsh finding but it is a realistic one. He has said and the Tribunal accepts, however that he will ensure that the products he uses in the future will be those which are appropriately approved or on appropriate advice. 23. He gave evidence of the hardship and impact upon him personally of the loss of his training privilege. It is in various categories. Firstly, as to himself and his embarrassment within his family circle and, secondly, of course, a loss of ability to participate in a sport of importance to him personally. In relation to his family, his mother is taken to the races and has an enjoyable social outing associated with it, and he has two daughters 13 and 11 the 13-year-old who is particularly interested in the industry and has a substantial personal desire to be associated with it. She apparently has been devastated by the loss of her father's ability to take her to the races. 24. There is also, of course, the financial impact upon him, not only in respect of prizemoney but in respect of the financial loss that will be occasioned to him. The Tribunal assesses that financial loss as to be relatively minor because of the limited number of dogs that he has and the fact that he only participates in a percentage share of winnings and is not paid training fees. Figures are not before the Tribunal and it will not speculate. 25. The Tribunal notes in particular, as it has made reference to, the letter of apology he tendered to the stewards of 8 November Importantly, as he did in his evidence today, he has maintained at all times an acceptance without qualification of his absolute responsibility as a licensed trainer to present a greyhound free of prohibited substance. He has emphasised there, as he did again today, that his conduct did not involve any intentional acts on his behalf and of course therefore the inability to explain, to which reference has already been made. He says he is genuinely sorry, he is sorely embarrassed and has no intention of breaching the rules again. He expresses how he takes them extremely seriously and is concerned about the consequences broadly as described by the Tribunal today. And, in addition, he apologises for having wasted the stewards' time and resources. 26. Those expressions of remorse are substantial. They go beyond that which this Tribunal is used to seeing. Importantly, in addition, in his evidence today he accepted that a period of disqualification was inevitable. That displaces the submissions made to the stewards that a suspension might be appropriate. The Tribunal assesses him on the evidence here. The acceptance that he is to be subjected to a period of disqualification is an important subjective factor. 27. Before the stewards, and repeated to this Tribunal, he has called in aid three referees, each of whom, importantly, is associated with the industry. As the Tribunal has said repeatedly, references from those who are licensed persons or otherwise associated with the industry to which the licence attaches must be given greater weight than those from outside the industry. In each case, in addition, his referees are aware of the circumstances that put him before the stewards. 6

7 28. The first is a reference of Brian Sinotti, manager of Zulu Lodge, where the appellant rears his greyhounds. He describes him as honest, forthright, prompt, amiable and devoted to his family and in particular devoted to his greyhounds. He considers his conduct to be out of character and not consistent with his honesty and integrity that Mr Sinotti has assessed. 29. Mr Michael Pitt has known him for over eight years, assesses him as honest, even-tempered and has always put his own interests ahead of others and he is a good family man, ashamed of his conduct and assessed by Mr Pitt as taking steps to ensure he will not come under attention again. He says that the appellant would always put the welfare of his greyhounds first. 30. Mr Ross, a licensed trainer, is a personal friend of 10 years, assesses him as a person of the utmost integrity, honesty, trustworthiness and reliability. He was shocked by the presentation matter and says it is out of character. He assesses him as a devoted family man and also reflects upon the impact this would have upon the appellant's family. 31. Those then are the subjective factors. 32. The other mitigating factor to which reference is made is the low level of the reading. This is accepted by the respondent. But there is no evidence before the Tribunal that this is a low level. It is said to be 1 nanogram per millilitre. There is no evidence of an expert that that is a low level. This is the first presentation for this drug for a greyhound. Accordingly, there is no comparison which can be made with other presentations. As to what is or is not a low level or a high level for this drug is simply not known to the Tribunal. 33. Substantial submissions are made in respect of parity. Those submissions relate to, in principle, a challenge to the categorisation by the stewards of various substances, such that others have received penalties which are not equated to those that might be applicable to this particular substance. There are a number of limbs to that submission and challenge. At the outset, however, it has to be said that the basis of the challenge is that two particular types of prohibited substances, namely, steroids and cobalt, have been assessed under lesser rules under the guidelines, such as Category 3 and Category 4, when they also fall within Category Cobalt in particular would fall within 79A(2)(xiii) as an (HIF)-1 stabiliser, and that has been known to Greyhound Racing since around 2015 when the threshold level was introduced, because in their own press release they said this: "Excessive amounts of cobalt has an effect on the cardiovascular system (GAR 1) as a haematopoietic agent and as a hypoxia inducible factor (HIF)-1 stabiliser And yet, interestingly and the Tribunal will turn to it in a number of recent cases it has been dealt with as a Category 4 substance. The reasons for that are not known. 7

8 35. Likewise also for anabolic steroids. They clearly fall under 79A(2)(xx), specifically stated to be: "Anabolic androgenic steroids excluding those that are defined as an exempted substance pursuant to GAR 1." 36. In addition, it is said that certain other substances which fall within Category 2 and which have been the subject of stewards' determinations and, indeed, in one case, the Tribunal have involved substances which it is submitted are more serious than a SARM. In particular, amphetamines, cocaine and various other drugs including methylamphetamine or ice, as it is known. 37. The question of what is an appropriate penalty in each case depends not just on a categorisation as 1, 2, 3, 4 or 5, etc, but also a consideration of the effect of the particular drug within that categorisation. In other words, simply by the fact that the rules choose to state that, for example, an amphetamine is a Category 2 substance, does not mean that those who breach the Category 2 substance guideline provisions for amphetamine should be dealt with the same or more leniently as those who present for a SARM such as ostarine. 38. In this particular case, ostarine does not fall within the lesser categories in any event, so that this submission, in the Tribunal's view, could be disregarded as it could be said to be focusing upon lesser matters instead of focusing upon the starting point of where it lies within the guidelines. 39. As to the other matters, the prohibited substance matters which formed part of the consideration of the stewards and the Tribunal will return to it on a parity basis the Tribunal has expressed the opinion that each of the drugs must be assessed. As the Tribunal said in its summary of Dr Karamatic's evidence and of the reports that were put in evidence before the stewards, critically this drug gives an unfair performance advantage to treated dogs by increasing muscle mass and increasing endurance of the greyhound. There is no evidence that was known or intended to be an effect by this appellant, it is acknowledged. But in this Tribunal's opinion, the particular SARM in question ostarine cannot be categorised as some equivalent to a drug such as an amphetamine, cocaine and the like, regardless of what impact those drugs may have upon a racing greyhound. As was said earlier, the Tribunal considers that the presence of ostarine, for the reasons expressed, is a serious breach of the rules. 40. In essence, therefore, the Tribunal assesses this matter on the basis that the subject drug falls within Category 2, and that is where it shall lie, and should not be seen to be possibly considered for lesser penalties under Categories 3 and 4 and others because the stewards on other occasions have elected to proceed on a Category 3 and 4 rather than, as they can now, under Category What then are straight parity matters? The challenge in respect of Category 2 is to the use by the stewards of the precedent table that was set out in their decision and its equivalent to the facts here. As is so often the case, the Tribunal does not have all of the facts that touch upon each of those matters. There is not, for example, 8

9 the stewards' report nor, in evidence here today, the Tribunal's decisions. However, what is here is that there are six trainers named and there is a table of precedents used. Those penalties range from 9 months and a $3000 penalty and the Tribunal notes that it has been told over the years, and adopted, that $3000 would equate to some 6 months period of penalty. So that that 9 month matter, effectively, if the monetary penalty was converted, would be equivalent to some 15 months. 42. The penalties range, therefore, from 12 months one of which had 3 months suspended through to 2 years and 12 weeks. The drugs in question were in all cases amphetamine-type matters. The categories ranged from low to high in a level, although not always stated. One of those trainers had two prior matters; the rest had none. The trainers' periods of licensing went from 13 years to If there was to be an equivalent to be looked for, there is the matter of Howard, a plea of guilty, 12 months, 3 months of which was suspended, Category 2 amphetamine, low-level, 18 years registration, no priors. There could be some comfort from Melvaine, a plea of guilty, 12 months, amphetamine, low, no prior, 20 years. All of the facts, as has been said of those matters, are not as detailed as those which the Tribunal is dealing with here, as is always the case. As to the 2 year matter for Azzopardi, he had two priors, and that can be disregarded as an upper level, as it were. 44. As to the argument about other matters to do with steroids and cobalt, there is the precedenbt table that has been extracted which comprises the last seven matters dealt with for either of those two types of substances. It shows limited evidence of the years of registration. There are four cobalt matters, each of which was dealt with under Category 4. It is not said why and the Tribunal is not given a date which would equate it to the 2015 introduction of the press release and the threshold to indicate whether they are post-press release matters or not. The penalties there range from 10 to 32 weeks. Some involve pleas of guilty, not all. There are other matters to do with other steroids and they involved penalties between 32 weeks and the equivalent of 12 weeks, when an 8 week plus a fine of $500 is looked at. They were for Category 3 substances. 45. On a parity basis, the Tribunal is not assisted by that table, for the reasons it expressed, in that it is dealing with a Category 2 and not category 3 and 4 matters. The more critical table is that on a parity basis to the extent that it can be used, which has been summarised and which was used by the stewards. 46. Little comfort is found in parity, acknowledging the importance to this appellant to be able to say, "I was dealt with fairly compared to my peers", and for his peers to be able to say, "He was dealt with fairly as against what we did and what we received." A difficult exercise. 47. The submissions for the appellant also touch upon that necessary finding of what is appropriate by an instinctive synthesis. The Tribunal was also given the matter of Hughes, a decision of 18 May 2016, but gives little assistance in dealing with that matter by a reading of the facts there and the circumstances of the presentation, and that shall not be further analysed. 9

10 48. The industry, through its regulator, considers that this appellant should be disqualified for three years. It acknowledges that there are various matters which should enable him to expect and to receive less than that. 49. So far as his ready and early admission of the breach, to which reference has been made, his, as described, unusual letter of apology, there is certainly to be a substantial discount and it is all of that 25 percent which has been otherwise seen to be appropriate. 50. He is entitled to his past prior history of 17 years plus a little bit more in consideration where he has not come under adverse notice. 51. His personal circumstances of hardship are not, as to his own circumstances, seen to be distinguishable from many others in the industry as to the financial commitment he has made to it. In that sense, as was said as long ago as Thomas in 2011, in an appropriate case the message to be sent is that which is required to be sent and not unduly reduced by hardship. 52. He does have, so far as his family is concerned, and his children, a not different set of circumstances to others in the community. Families rely very much upon the social aspect of greyhound racing and all of the attributes that it brings to families collectively and to its individual members. And, in that regard, as regrettable as any impact upon his 13-year-old daughter is, she in essence will be no different to many others. 53. He does have some slightly different personal circumstances and they have only been briefly described for privacy reasons to do with his full-time care of his mother. That is a factor that can be distinguished from others by reason of the impact upon his mother. And again, that shall not be further described for privacy reasons. And that impact is assessed as her loss of ability to have the outing, which the Tribunal accepts is and was important to her. 54. Those then are the critical subjective factors. 55. The Tribunal does not have to follow the guidelines by finding a starting point and reducing it by various mathematical formulae. It is that synthetic analysis, as it were, the synthesis in coming to a conclusion that the Tribunal can reach, but guided by those other matters and having regard to the other cases to which reference has been made. 56. This appellant is dissatisfied, for the reasons expressed, with a period of 60 weeks, which very roughly equates to 14 months. In assessing all of these matters, the Tribunal does not see that the facts available to it are greatly different to those to which the stewards applied the guidelines. The Tribunal does not see that the various unspecified discounts to which the stewards touched indicate that there should be any greatly different approach adopted by the Tribunal. 10

11 57. The Tribunal does not see on a parity basis a great reason to distinguish, however, the matters to which it did make reference where it was considered that 12 months was appropriate. There is nothing substantially different between 12 months and 14 months. 58. In the circumstances, the Tribunal does not see that there is a reason to go beyond 12 months and in the circumstances, it being acknowledged a disqualification is appropriate, the Tribunal determines the period of disqualification is 12 months. That will date from the date that the appellant was disqualified by the stewards, which was 30 November The formal order is that the severity appeal is upheld and there is a period of disqualification of his trainer s licence of 12 months to commence on 30 November 2016 SUBMISSIONS MADE IN RELATION TO APPEAL DEPOSIT 60. At the conclusion of the matter the Tribunal has to determine whether the appeal deposit is refunded refunded in whole or refunded in part. This appeal has been a severity appeal only. In that respect the appellant has been successful. However, the extent to which that success has led to any substantial reduction is not there. In the circumstances, the Tribunal orders 50 percent of the appeal deposit refunded. 11