Non Raceday Inquiry – Penalty Decision dated 13 March 2023 – Matthew Jason Anderson

PENALTY DECISION MADE ON THE PAPERS

1. Mr M J Anderson was at the relevant time on 8 November 2022, a “Prohibited Person” under Section 40 of the Racing Industry Act 2020 as a result of certain convictions for violent offences, imposed in the District Court on 24 November 2020 after a defended hearing.

2. He was charged by the RIB with 3 breaches of the NZ Rules of Harness Racing namely, that on 8 November 2022 at Fernside, North Canterbury:

(a)  Together with Philip Benjamin Burrows, a Licensed Trainer, did administer to “RAKERO REBEL”, which was entered in Race 7 at the NZ Metropolitan Trotting Club’s meeting at Addington that day, a Prohibited Substance by way of hypodermic syringe, in breach of NZHR Rule 1004I(1) and subject to the penalties pursuant to Rule 1001(2).

(b)  Together with Philip Benjamin Burrows, a Licensed Trainer, did administer to “RAKERO REBEL”, which was entered in Race 7 at the NZ Metropolitan Trotting Club’s meeting at Addington that day, a substance by way of nasal gastric tube, in breach of NZHR Rule 1004C(1) and subject to the penalties pursuant to Rule 1004(D).

(c)  Being a Prohibited Person, he acted in contravention of a notice issued by HRNZ, by assisting Trainer Philip Burrows in the raceday preparation of registered horses “RAKERO REBEL” and “MILLWOOD INDIE” in breach of NZHR Rule 1002(1)(b) and subject to the penalties pursuant to Rule 1003(1).

3.  Through his Counsel, Mr Anderson has admitted the charges.  With the agreement of the parties, and in order to reduce costs, this penalty decision is made on the papers.

4.  Mr Burrows, as a Licensed Trainer, has been dealt with, upon his admitting the charges of administering the 2 substances, and of associating with the Prohibited Person, Mr Anderson, and has been disqualified for 10 years.  He has filed an Appeal against that penalty.

Essential Facts

5.  These are outlined in the Adjudicative Committee’s Penalty Decision relating to Mr Burrows. Tuesday 8 November 2022 was “Cup Day” at the NZ Metropolitan Trotting Club’s meeting at Addington.  Mr Burrows was the Trainer of 2 horses entered to race that day.  They were “RAKERO REBEL”, a 3 year old filly due to race at 3.06pm in the Group 1 Nevele R Fillies Series Final with a total stake money of $140,000 and “MILLWOOD INDIE” to race in a lower class event.  Mr Burrows was the private Trainer for the Owner of that and other horses.  Mr Anderson was also employed by the Owner, not Mr Burrows.

6.  Acting upon certain information or allegations received, RIB Investigators conducted covert surveillance of Mr Burrows’ stables in Fernside, Canterbury on the morning of 8 November 2022.  Although an Investigator was some considerable distance from the stables, so as to not be observed, he was able to capture on film by zoom video the following events as they unfolded.

7.  The Adjudicative Committee has viewed this film of approximately 30 minutes when in the process of considering the penalty for Mr Burrows.

8.  At about 11am Mr Anderson and Mr Burrows were seen to bring 2 horses in to the tie-up area of the main stable.  They were (as later identified) “RAKERO REBEL” and “MILLWOOD INDIE”.  Mr Anderson was leading “RAKERO REBEL” and attended to and groomed its preparation to race that upcoming afternoon.  Mr Burrows attended to “MILLWOOD INDIE”.

9.  As a “Prohibited Person”, Mr Anderson was not permitted to assist in raceday preparation of any horse.  He knew this, as did Mr Burrows.  Earlier on 4 May 2021 Investigators had observed Mr Anderson driving horses in work for Mr Burrows which he should not have been doing.  Mr Burrows and Mr Anderson were warned in writing on 15 June 2021 that this was not permitted.  And later on 21 December 2021 Mr Anderson was written to and told that whilst he may be able to purchase, break-in, and gait yearlings, he was not to prepare horses for any trial, or raceday or undertake any training of any horse.

10.  At about 11.20am the Investigator observed – and the film clearly depicts – Mr Burrows inject a substance into the neck of “RAKERO REBEL” using a hypodermic syringe.  Mr Anderson was involved in the process by holding the horse’s head throughout.  When later apprehended Mr Burrows said to the Investigators that the substance was vodka and he used 30mls of it (neat).  Vodka contains 40% alcohol which is a Prohibited Substance.

11.  Following the injection of the Prohibited Substance, Mr Burrows, with Mr Anderson being involved by holding the horse’s head, applied a “twitch” (a device used to restrain horses in various stressful situations).  Mr Anderson was seen to also apply the “twitch”.  The horse was then “tubed” . This is a process of inserting a plastic tube into the horse’s nostril and oesophagus in order to administer a liquid substance with the associate assisting.  Mr Burrows completed the process twice.  When later interviewed he said that the liquid was a “slurry” (that is a “milkshake”), being a combination of bicarbonate of soda, brown sugar, Epsom Salts and water.  It had to be mixed or prepared in advance, and is well understood to be intended to affect in some way a horse’s performance.  Whether it does or not is irrelevant to the charge.  The administration of the injection and the tubing took place approximately 3½ hours prior to the Group 1 Race.

12.  Mr Burrows then led “MILLWOOD INDIE” and Mr Anderson led “RAKERO REBEL” onto the horse float for the purpose of proceeding to Addington.  Mr Burrows drove the float.  Mr Anderson departed to other premises.  Mr Burrows was apprehended in his driveway by Investigators.  As a result of what was said, they located in the medicine cabinet at the stable a hypodermic needle, 2 Vodka bottles (one full and one half full) and the tubing apparatus.

13.  Upon the Investigator confronting Mr Burrows in the driveway at the horse float, he:

(a)  Admitted injecting “RAKERO REBEL” with, he said, 30mls of Vodka, which he said was to “help calm the horse’s nerves”.

(b)  Admitted tubing the filly with a “slurry” of bicarbonate soda, Epsom Salts, brown sugar and water.

(c)  He said “It’s a Group 1 Race and you just feel like you are behind the eight ball and you just wanna do your best to get the best result for the owners”.

14.  Mr Anderson was not then present, but was soon visited at another property and spoken to.  He was referred to the administration of substances to the horse and his part in this.  He lied and said he “didn’t know anything about the allegations”.  He was then told that his actions had all been recorded on film.  His then response was that he wanted legal advice before answering any questions.  About a week later he told the Investigator he admitted his actions with the horse whilst Mr Burrows injected and tubed it, but said he did not know what horse it was.  He said it was because Mr Burrows had asked him to hold the horse and as he was the only one there he “felt pressured” to do so.

15.  Mr Anderson has had 2 previous breaches of the Harness Racing Rules for “Serious Racing Offences”, from 2020, when a Licensed Reinsman.  These were on 14 July 2020 for supplying the Class B Drug MDMA (“Ecstacy”) to 2 (names suppressed) Licensed Reinsmen, and refusing to supply information to Investigators.  He took refuge in constant silence and “no comment” in breach of his obligations to the profession.  The Adjudicative Committee disqualified Mr Anderson for 6 months, concurrent on each charge, commencing on 1 August 2020.

16.  Mr Anderson later became a “Prohibited Person” under the Racing Act, for 2 years from 24 November 2020.  This was as a result of a sentence imposed in the District Court at Christchurch, having been found guilty after a defended hearing for violent offending on 2 February 2020 against a female victim. That pending trial was naturally not known to the Adjudicative Committee that dealt with his charges.  These criminal offences are unrelated to the Harness Racing Code, and their only relevance is that they provide the background as to how he became a “Prohibited Person”.

Penalty

17.  Mr Irving said that Mr Anderson’s offending has caused significant reputational damage to the Harness Racing Industry; the expected race was a Group 1 feature on a premier day with a gross stake of $140,000.  He pointed to the aggravating feature of a 6 month’s disqualification in 2020 for 2 Serious Racing Offences.

18.  Reference was made to the cases of RIU v McGrath (3 July 2020), RIU v R G M Burrows (4 September 2020), RIU v Alford (10 May 2021), RIB v Jones (June 2022) and RIB v Wigg (March 2022), all of which the Adjudicative Committee is familiar.

19.  He emphasised that this case involved two successful administrations – not just attempts.  He advocated a global starting point, to encompass the 3 offences of 6 years disqualification and said that a “meaningful discount for his cooperation with the authorities is appropriate”.  He submitted that a minimum period of 5 years was appropriate.

Submissions from Counsel for Mr Anderson

20.  Whilst Counsel initially “suggested” that there be an adjournment until a Court Judgment in an unrelated matter be awaited, the Adjudicative Committee does not accept that should happen or is necessary.  Indeed Counsel has proceeded on the matter being dealt with on the papers.

21.  His submissions may be distilled to the following.

22.  There is an acceptance that Mr Anderson was fully involved and his conduct and that of Mr Burrows illustrated that they were well aware of the seriousness of their actions.  He acknowledged the aggravating features of a significant raceday with impacts on the betting public and Owners.

23.  He emphasised his submission that Mr Anderson was not a party to the “original decision” to administer to the horse; he derived no benefit from it, and there was no one else at the stables who could have assisted.

24.  He contends that the primary offender (Mr Burrows) should bear the brunt of the disciplinary process.  He said Mr Anderson’s offending would not have occurred had Mr Burrows not called him to assist.

25.  Counsel advised of certain “instructions” he had received from Mr Anderson, namely that he was “close to completing the rehabilitative process”; pressure had been placed on him from time to time by Mr Burrows; Mr Burrows had complained about him to his employer, who also employed Mr Burrows, the Owner of the Racing Stables and horses; he is aged 30 and in gainful employment.

26.  He submits that no weight attach to the fact that “two substances rather than one were involved”.  (The Adjudicative Committee observes that what occurred was two different administrations, one the injection of a Prohibited Substance (a Serious Racing Offence) and one a raceday administration of a substance by tubing).

27.  Counsel said that the previous disqualification for 2 Serious Racing Offences were of a very different nature and therefore not an aggravating factor.  He said that they may be relevant to any loss as credit for a clean record.  He said credit should be given for Mr Anderson’s “cooperation” with his guilty plea.

28.  In summary Counsel argued that a period of only 2 years disqualification should be imposed to be consistent with “Guidelines” and similarities with the Alford decision.

Penalty Decision

29.  As this Adjudicative Committee recorded in its Penalty Decision relating to Mr Burrows, proceedings under the Rules of Harness Racing (as is the position in all cases involving professional discipline) are designed not to simply 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 regulatory Tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member who betrays his/her duty to the profession…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.

30.  General deterrence is vital so that others involved in the Harness Racing Industry must understand that stern sanctions will follow from such serious offending.  In this case, it was deliberate and dishonest.  It is aggravated by Mr Anderson’s defiance of the Direction that he not be involved in the preparation of horses to race – that is, he should not have been anywhere near the tie ups stable that morning.

31.  The Adjudicative Committee views with some scepticism his claim that he felt “pressured” by Mr Burrows to become involved.  He was not employed by Mr Burrows, as both he and Mr Burrows were employed by the stable’s Owner.  His employment was in a very different capacity.  Mr Burrows could not administer the substances on his own, and the offending could not have occurred without Mr Anderson’s involvement which was vital in the procedure.  And, as the Adjudicative Committee has said, Mr Anderson had no place in attending to “RAKERO REBEL” that morning.  The Adjudicative Committee accepts, of course, that but for Mr Burrows’ initiative, Mr Anderson could not have participated but rejects his claim that he was “pressured” to do so.

32.  This was not a case of “attempted administration”, as featured in some other cases.  It was aimed at, as Mr Burrows said, assisting the filly in her race that afternoon.  The Adjudicative Committee takes as a starting point, for the totality of the 3 offences, a term of 4 years 6 months disqualification.  This is 50% of that which was fixed in Mr Burrows’ decision, so as to reflect the fact that Mr Anderson may have been a “lesser” party to the offending, as assisting only – although without his actions, the offences could not have occurred.

33.  The Adjudicative Committee then turns to consider any aggravating circumstances.

(a)  This was a Group 1 Race for 3 year old fillies with a total stake of $140,000 on the year’s biggest day for the Harness Racing Industry.

(b)  The filly was prevented from obtaining the chance of achieving valuable “Black Type” status, as well as her Owner being prevented from having the chance of obtaining some stake.

(c)  His actions were a betrayal of his duty to his employer.

(d)  The film clearly depicts surreptitious and furtive behaviour which illustrates that he knew precisely that he was offending in a serious way.

(e)  His defiance of the warning previously given to him by Harness Racing was arrogant, showing total disregard for obeying the standards of the profession.  It was a betrayal of the benevolent concession given to him by HRNZ.

(f)  He earlier in 2020 had been found to have committed 2 Serious Racing Offences, after a defended hearing.  So the present offending represents another Serious Racing Offence, and 1 of raceday tubing, as well as defiance of a Direction.

34.  The Adjudicative Committee does not agree with the submission of Mr Anderson’s Counsel that the prior offences are not aggravating factors, and only lead to the removal of credit for a “clean record”.  Quite apart from the aggravating considerations in criminal cases where previous convictions may be taken into account s.9(1)(j) Sentencing Act 2020, in professional discipline – matters where fitness to continue with the privilege of a licence or registration or participation is to be considered – the whole conduct of the person will be relevant in determining that entitlement.  Mr Anderson’s past conduct is aggravating and is relevant to his present fitness to be involved in the profession.

35.  And, despite Counsel’s assertion that the past offences were of “a very different nature” they were still 2 “Serious Racing Offences” representing disregard for the Rules and duties of Mr Anderson.  “Misconduct” as it relates to professional obligations may take many forms, and is not to be disregarded simply because it is not always of the same kind.

36.  The Adjudicative Committee considers an uplift of 18 months is required to reflect the aggravating factors.  That leads to a period of 6 years.  The next step for the Adjudicative Committee is to determine whether there are mitigating factors that require some discount from that.

37.  Counsel for Mr Anderson submitted that he had “cooperated” with his guilty pleas and that there have been costs savings in not having to have an oral hearing.

38.  Mr Anderson did not cooperate – as did Mr Burrows.  He first lied to the Investigator.  The Adjudicative Committee believes this was in the hope that he could evade, or defend, any responsibility.  When advised that a film existed he took refuge – as he had before – in silence.  It was only after it was clear that any defence would have been futile that he had no option but to admit the charges.  But he still sought to minimise his culpability by claiming he did not know that it was “RAKERO REBEL’ to whom the administration occurred.  That claim is not now advanced by his Counsel.  It was spurious and not capable of belief.

39.  The Adjudicative Committee needs to record that discount for a guilty plea is not automatic, nor always to be afforded in professional disciplinary cases – for example, if a professional person’s total behaviour requires striking off the register, that may occur irrespective of a guilty plea.  That might not be fully understood by some in the Racing Industry.  Whilst the providing of encouragement for guilty persons to admit their guilt is a necessary incident of the criminal justice system, the rationale is explained by the Supreme Court in Hessell v R [2010] 135 where it emphasised the policy reasons for giving credit for guilty pleas in sentencing in criminal cases.  These include the circumstances in which the plea is given, when the plea was entered, the sparing of witnesses having to give evidence, the interests of any victims, the acceptance of responsibility, the saving of Courts’ times, and the strength of the prosecution case.  What is required is a careful consideration of all the relevant circumstances so as to identify the mitigative effect of the plea.

40.  Concessions arising from acceptance of fault or wrongdoing may be afforded in the professional disciplinary process but if the misconduct is so serious as to require removal from the privilege of participation in the profession because of unfitness, guilty pleas where no defence is tenable may not avoid the striking off.

41.  Mr Anderson has not expressed any genuine remorse or insight and sought to minimise his actions by attributing “influence” by Mr Burrows who was not his employer.

42.  Costs have been avoided by the pleas, although, when any defence failed – which was inevitable – Mr Anderson could have expected to be subjected to a costs order.  There are no lay witnesses, victims or other relevant participants in the process.  The acceptance of guilt was inevitable, and has meant that Mr Anderson (as was the case in his earlier offences) has not had to face this Disciplinary Tribunal and be subject to questioning.

43.  The Adjudicative Committee does not accept the claim that Mr Anderson was “close to completing” any rehabilitation.  To rehabilitate is to restore oneself to a former good reputation and a capacity for normal behaviour.  But Mr Anderson has simply acted in deliberate defiance of the Rules of the Profession, as well as blatant defiance of the concession he obtained from the Exemptions Committee, in the hope he could get away with it.  His attitude of self entitlement and repudiation of his duty does not signify any genuine rehabilitation.  As is his betrayal of his employer/Owner of the horse.

44.  The Adjudicative Committee would not have afforded Mr Anderson any discount for his pleas.  He had no option.  But, given the stance of the Informant that it considered some should occur, and Counsel’s submissions have been made faced with the fact of that concession, it is proper that some discount occurs.  That is fixed at 12.5% of 6 years, equals 9 months discount.

45.  Accordingly the end global term is 5 years 3 months disqualification.  Mr Anderson has shown by this and other serious racing offences, over a relatively short timeframe, that he is presently not fit to be involved in the Harness Racing Industry.  If he wishes, as Counsel advises, to eventually return to the Industry he may in time, of course, apply to the Authorities for a particular licence, which under the existing Rules HRNZ may in its discretion grant or decline, depending on its assessment as to whether he then is fit to be given the privilege of a licence.  His refusal to abide by the benevolent exemption in this case might then be relevant, although it will be a matter for HRNZ.

46.  The Adjudicative Committee is mindful of the different penalty provisions in the Rules for the 3 offences, and fix the global disqualification period of 5 years 3 months on the lead offence (Information No. A16904) of administering the substance by way of hypodermic syringe.  This is based on the totality principle as the other offences are subject to separate but concurrent, and different, penalties.  The term of 5 years 3 months reflects the difference in the respective culpability of Mr Burrows as Licensed Trainer and Mr Anderson.  The disqualification is to commence on Monday 20 March 2023.

47.  The penalty for the Raceday Tubing offence (Information No. A16905) is disqualification for 18 months to commence on 20 March 2023.

48.  The penalty for acting in Contravention of the Notice and Direction of HRNZ (Information No.16906) is disqualification for 9 months to commence on 20 March 2023.

49.  All terms of disqualification are concurrent.

50.  There is no order as to costs.