Non Raceday Inquiry – Penalty Decision dated 7 June 2023 – Daniel Miller

Introduction

[1] The Racing Integrity Board (RIB) filed Information A17972 which relates to a Prohibited Substance charge against Class A Licensed Trainer, Mr Daniel Miller (the “Respondent”).  This charge arises from ROCA FUNDEEDA’s first placing in Race 4, the Liquorland 1200 metre race at the Whanganui Racing Club race meeting in Whanganui on 23 February 2023. The gross stakemoney earned for first place was $7,840.

[2] During a teleconference between the parties on 22 May 2023, the Respondent admitted the charge.  The Penalty hearing took place at the Matamata RC on 7 June 2023.

[3] As a consequence of Mr Miller’s admission of the breach, ROCA FUNDEEDA was disqualified from its first placing and the Respondent was fined $3,500. The Adjudicative Committee also directed that the official placings in the race be amended in accordance with its Decision, and any stakemoney paid (or held) pending this Decision, be forfeited.

The Charge

[4] Mr M Clement, The Chief Executive RIB, authorised the filing of charge. The charging document, via Information No. A17972 provides that:

On 23 February 2023 at the Whanganui Racing Club meeting in Whanganui, Daniel Miller being the registered trainer of the horse, presented ROCA FUNDEEDA for the purpose of engaging in and did engage in Race 4, failing to present the said horse, free of the Prohibited Substance ‘Diclofenac’ in breach of Rule 804(2) and liable to the penalty imposed pursuant to Rule 804(7) and 804(8) of the rules.

The Relevant Rules

[5] Rules 804(1) and 804(2) provides that:

(1) A horse which has been brought to a Racecourse or similar racing facility and which is found by a Tribunal conducting an inquiry to have had administered to it or have had present in its metabolism a Prohibited Substance shall be, in addition to any other penalty which may be imposed, disqualified for any race or trial to which the Third Appendix hereto applies in which it has started on that day.

(2) 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.

Penalty Provisions

[6] Rule 804(7) provides that:

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.

The Facts

The key salient facts are summarised as follows:

[7] The Respondent in this matter, Daniel John Miller, is the holder of a Class A Trainers Licence issued by New Zealand Thoroughbred Racing [NZTR]. He currently has twenty-six thoroughbreds registered with NZTR, although acknowledges that he only has six currently in work, which he trains from his Stables – D Miller Racing, located in Matamata.

Circumstances

[8] On 23 February 2023, the horse ROCA FUNDEEDA won Race 4, the Liquorland 1200 metre race at the Whanganui Racing Club Meeting in Whanganui. Stakemoney for first place was $7,840.

[9] ROCA FUNDEEDA is a 4-year-old mare trained by the Respondent and is owned outright by his parents.

[10] ROCA FUNDEEDA was post-race swabbed on 23 February 2023 at 14:45 hours.

[11] On 14 March 2023, New Zealand Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing the sample obtained from ROCA FUNDEEDA was positive to the Prohibited Substance – Diclofenac.

[12] Diclofenac is defined as a Prohibited Substance under the Prohibited Substance Regulations of the NZTR Rules of Racing falling under clause 1.1.6 and in the category of substance – Part A (1.2.21) anti-inflammatory agents within the meaning of the Rules.

[13] Diclofenac is a nonsteroidal anti-inflammatory drug used in horses for control of pain associated with inflammation and osteoarthritis. It is permitted in race day samples as a therapeutic substance to a regulatory limit of mass concentration of 50 micrograms per litre in urine. The NZRLS has reported that the level in this sample is reported as greater than 100 micrograms per litre (upper level of calibration).  Its presence therefore above the regulatory limit of 50 micrograms in a race-day sample is, prima facie, a breach of the Rules.

[14] Diclofenac is not listed on the NZEVA Period of Detection List with a listed ‘Possible Withholding Time’ due to having variable excretion rates.

[15] On the 20 March 2023, Investigators from the RIB undertook enquiries at the Respondent’s Stables and subsequent interviews of the Respondent and Kelly Van Dyk, whom Mr Miller described as his employer, being the sole Trainer for the Van Dyk’s and Prima Park.

[16] The Respondent advised during the interview that he had been treating ROCA FUNDEEDA with Voltaren Emulgel via topical application since February 2023. He was applying the Voltaren Emulgel four to five times a week to her two front fetlocks due to “her carrying swelling in both of them.”

[17] The Respondent acknowledged that he would have administered the topical gel 90% of the time to ROCA FUNDEEDA with Kelly Van Dyk the remaining 10%.

[18] Both the Respondent and Ms Van Dyk advised they were not aware of the regulatory threshold limit of 50 micrograms per litre in urine.

[19] The Respondent acknowledged during the interview that he was also personally using Voltaren Emulgel to treat both his elbow and left ankle because of his boxing injuries.

[20] A 100-gram tube of Voltaren Emulgel 11.6mg/g was located at the stable, which the Respondent acknowledged was the current tube being administered topically to ROCA FUNDEEDA. When questioned as to the quantity he would apply to ROCA FUNDEEDA’S front fetlocks he stated – “Maybe the size of a gold $2 coin just on my fingertips and then rub it on the sides of her fetlocks where the swelling is…It wasn’t uncommon for me to put some on her fetlocks and then I’d slap some on me.”

[21] On the day of the 22 February 2023 ROCA FUNDEEDA was transported to Whanganui from Matamata by trailer float by the Respondent’s parents and was boxed on course at the Whanganui Racecourse overnight.

[22] At approximately 18:00 hours (6 pm) on the night prior to the race, the Respondent applied Voltaren Emulgel to both of her front fetlocks prior to bandaging them.

[23] Enquiries were undertaken with NZTR Chief Veterinarian – Dr Andrew Grierson concerning Diclofenac and he advised that it is not on the list for a reason. That is because it has variable excretion rates and continues to be excreted in urine well past small levels in plasma. He said, “simply use it at your own peril”’. He advised some drugs are not on the NZVA list because they have variable excretion. Of the anti-inflammatory group of drugs, the classics are both Nurofen and Voltaren that are not on the list because of this. So, in reality it is a do not use withholding period.

[24] The Respondent requested the ‘B’ Sample be independently tested and elected for the sample to be tested by Racing Analytical Services Ltd (RASL) in Victoria, Australia. The ‘B’ Sample has subsequently also been confirmed as being positive to the Prohibited Substance – Diclofenac.

[25] RASL have provided an estimate of the level of Diclofenac contained within the urine ‘B’ Sample being an estimated level of 410ng/mL. This being in-excess of eight times the regulatory limit of 50ng/ml.

[26] Throughout this investigation the Respondent has been cooperative and forthcoming as to how the Diclofenac positive has occurred.

[27] Enquiries into the Respondent’s judicial record with NZTR, confirms he has no previous breaches of the Prohibited Substance Rule or any serious racing offences with New Zealand Thoroughbred Racing [NZTR].

[28] The horse is required to be disqualified pursuant to Rule 804(8) from Race 4 at the Whanganui Racing Club Meeting on 23rd February 2023.

Penalty Submissions (Applicant)

[29] The Respondent has admitted the charge, filed pursuant to Rule 804(2).

[30] The full details relating to the breach are set out in the preceding Summary of Facts.

[31] The penalties which may be imposed are outlined in paragraph 5.

Sentencing Principles

[32] The RIB submits that the following three four principles of sentencing apply in this case:

• Penalties are designed to punish the offender for his or 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 RIB for the type of behaviour in question.

Precedent Cases

[33] In terms of previous penalties for similar Rule breaches, the Adjudicative Committee was referred to the following Decisions which the RIB submits, may provide some assistance. The first two of interest, involve the Prohibited Substance Diclofenac and relate to breaches within the Greyhound Racing Code.

RIU v Goldsack (08/2021)

[34] In June 2021, Mr Goldsack, a Licenced Greyhound Trainer, admitted a breach of GRNZ Rule 61.1 and 61.3 by failing to present his Greyhound LIGHT CRUISER free of Prohibited Substance – Diclofenac post-Race 12 at the Whanganui Greyhound Racing Club.  In considering this case, the Adjudicative Committee advised the following:

“Presenting greyhounds to race when they have in their metabolism a prohibitive substance is, or should be, known to all Trainers to be absolutely outside the Rules. It is to ensure that the integrity of all races is not compromised so that the ‘contest’ is on an even playing field. Stringent care is required in the management, treatment, and care of the greyhound before being presented to race. That is a fundamental obligation and requirement of Trainer, and the integrity of the Code depends on it. Deterrence to others is a significant factor in a penalty sanction.”

[35] The outcome in this case was a fine of $3,000.

RIU v Mitchell 03/2016)

[36] In January 2016, Mr Mitchell, a Licensed Trainer, and person in charge of the Greyhound, presented TUFF DIAMOND for and raced in Race 7 at the Palmerston North Greyhound Racing Club meeting at Manawatu Raceway, failed to present the said Greyhound free of the Category 5 Prohibited Substance Ibuprofen (Diclofenac), being an offence under the provisions of Rules 86.1 and 86.3 and punishable pursuant to Rule 88.1 and 86.4 of the New Zealand Greyhound Racing Association Rules.

[37] The charge was admitted. In considering this case, the Adjudicative Committee advised the following:

“Mr Mitchell is an experienced trainer of greyhounds and knows the industry well having been involved for over 30 years. It is therefore surprising that he would consider using a human medicine on one of his dogs, and one that would certainly not be recommended by a veterinary surgeon. We find this to be an aggravating factor however, following research on the internet, Mr Mitchell was satisfied that the dose he gave would not be toxic to Tuff Diamond. This indicates to us that he had the welfare of his dog foremost in mind when giving the Ibuprofen and we do not apply any uplift in penalty as a result.”

[38] The outcome in this case was a fine of $3,000.

[39] The RIB also submits the following two cases involving Meloxicam, which is also an anti-inflammatory agent, which falls under clause 1.1.6 and in the category of substance – Part A (1.2.21) within the meanings of the Rules. It is to be noted that both occurred post-trial heats and not on a Raceday, with likely cause being a degree of carelessness.

RIU v Lucock and Gillespie (07/2018)

[40] In May 2015, Mr Lucock and Ms Gillespie, holders of a Class A Trainer Licence, admitted a breach of Rule 804(2). This was in relation to their horse, MISS CAMPBELL, which tested positive to the Prohibited Substance, Meloxicam following a post-race swab after starting in Heat 1 of the Avondale Jockey Club Trials. Mr Lucock told the Committee they regularly used Meloxicam, as opposed to other substances which tend to be harsher on their horses.

[41] In considering this case the Adjudicative Committee advised the following: – “The stable diary notes do not record the fact the substance was applied on the Saturday concerned, but other entries do corroborate regular use of Meloxicam on MISS CAMPBELL. The Respondents advise this was an oversight and perhaps a symptom of their current situation. Accordingly, we accept that this breach is the result of nothing more than an honest mistake”.

[42] The outcome in this case was a fine of $2,800, to be shared equally between each of the two Respondents.

RIU v Pertab (05/2019)

[43] In March 2019, Mr Pertab, a Class B Trainer, admitted a breach of Rule 804(2). This was in relation to his horse, a “2g Rock ‘n’ Pop (AUS) – Nicole Amy” which tested positive to the Prohibited Substance, Meloxicam following a post-race swab after starting in Heat 6 of the Matamata Racing Club Trials. Mr Pertab could offer no explanation for the positive result other than possible cross contamination from another horse he was training that was prescribed Meloxicam by his vet.

[44] In considering this case, the Adjudicative Committee advised the following: – “We have regard that this is not a situation where the Prohibited Substance, Meloxicam was given to enhance performance, but rather the likely cause was cross contamination.”

[45] The outcome in this case was a fine of $3,000.

[46] The RIB referred to another case involving Clenbuterol RIB v Clotworthy, but that matter is of limited assistance given the nature of the substance and the circumstances of the breach.

Mitigating Factors

[47] The RIB submitted the following mitigating factors:

47.1 The Respondent has cooperated fully with Investigators and admitted the charge at the earliest opportunity.

47.2 The Respondent has no previous breaches of the Prohibited Substance Rule or any serious racing offences with New Zealand Thoroughbred Racing [NZTR].

47.3 The Respondent has since improved his systems to avoid any further contamination in the future. The Adjudicative Committee understands that the improvements include better record keeping.

47.4 It is accepted that there were no sinister intentions in relation to the positive result and has occurred because of carelessness through excessive application.

Aggravating Factors

[48] The RIB submitted the following aggravating factors:

48.1 Legal precedent provides that ‘Trainers’ have an absolute liability for presenting their horses free of Prohibited Substances.

48.2 The Respondent should have taken extreme care when treating a horse with a Prohibited Substance. Not being aware of the regulatory threshold limit amounting to carelessness in their actions, is not an excuse.

Conclusion

[49] When determining penalty, the RIB submits that the Adjudicative Committee has regard to the purpose of the proceedings, which include: (a) to ensure the Rules are complied with; (b) to uphold and maintain the high standards expected of Trainers; and (c) to protect the integrity of Thoroughbred Racing.

[50] In establishing an appropriate penalty, the RIB acknowledges the Thoroughbred Racing Penalty Guide that came into effective on 1st February 2023, which identifies a starting point penalty for Prohibited Substances – Presenting Offences for a first offence – $8,000 fine.

[51] The RIB submits that given the mitigating factors as listed and the overall circumstances considered in this case, the RIB adopts a starting penalty of $3,000 as appropriate for any adjustment at the Adjudicative Committee’s discretion, regarding mitigating factors and aggravating circumstances.

[52] The RIB seeks costs of $1,652.87 for analyst of the ‘B’ Sample.

Penalty Submissions (Respondent)

[53] The Respondent provided oral submissions at the hearing.  He advised that he had read the submissions lodged by the RIB and he had nothing to add in response,

[54] He submitted that he had “been upfront from the outset and had fully cooperated with the RIB investigation”.

[55] He further submitted that “something needs to be done with Voltaren” because there is no warning(s) given as to its use, and it is freely available.

[56] The Respondent concluded his submission by pointing out that his only reason for administering the substance was “because I was only trying to look after my horse”.

Decision and Reasons

Decision

[57] After evaluating the facts and the submissions, the Adjudicative Committee determined a fine of $3,500 to be appropriate in the circumstances of this case.

Reasons

[58] In reaching its Decision, the Adjudicative Committee gave careful consideration to (a) the Penalty Guide starting point and the particular nature of the breach; (b) the Respondent’s level of culpability; (c) relevant precedent cases and penalties to ensure consistency; (d) adjustments for mitigating and aggravating factors.

[59] In addition, consideration was given to the applicable sentencing principles highlighted by the RIB in their penalty submission as well as the well-known and often-quoted paragraphs in the Appeals Tribunal Ruling In RIU v L and in the case of Z v Dental Complaints Committee [2008] NZSC 55, [2009] 1 NZLR 1.

[60] In RIU v L, the Appeals Tribunal at [25] commented:

Proceedings …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.  Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations.

[61] In Z v Dental Complaints Committee, it was said that:

It is well established that professional disciplinary proceedings are neither civil nor criminal in nature …. because the purpose of disciplinary proceedings within various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation….

The Facts and Penalty Guide Starting Point

[62] The facts surrounding the breach have been thoroughly canvassed at paragraphs [7] to [28] within this Decision.  There is no need for the facts to be repeated.

[63] The Respondent is liable to any sanction available within the penalty provisions, set at paragraph [6], but importantly the penalty itself must be evaluated on a fact dependent basis. The Penalty Guide provides for a penalty starting point of an $8000 fine, with provision for adjustments to be made with regards to mitigating and aggravating factors.

The Respondent’s Level of Culpability

[64] The RIB has assessed the Respondent’s offending as being the result of carelessness. The Adjudicative Committee judges his level of culpability to be above mid-range and at the higher end of carelessness due in the main, to his failure to take proper care to ensure the dose he applied, was within the threshold limit of the permissible 50 micrograms per litre in urine. In addition, he should not have applied the substance in the evening prior to Raceday (Rule 804(5) refers).

[65] During the investigation, both the Respondent and Ms Van Dyk advised the RIB that they were not aware of the regulatory threshold. That may be so, but that seems incredulous given that as a Licensed Class A Trainer, the Respondent has an absolute obligation to be familiar with the Rules, particularly the requirements and risks associated with his day-to-day operational duties.  Moreso, with regards to the therapeutic treatment and use of substances that are or may be Prohibited under certain circumstances – (as well as the regulatory threshold limits set out in the Prohibited Substance Regulations for the Rules of Racing). The Respondent submitted that he was only trying to look after his horse, but it could also be argued that he could, or should, have taken professional advice from his veterinarian in relation to the pros and cons in using Voltaren to treat swelling on the eve of a race. Further, although he has since improved his systems to avoid any further contamination in the future, better record keeping at the time may have alerted him to the risks of overuse of the substance – given that written warnings on Voltaren Gel tubes state “do not use for more than 2 weeks except on medical advice”.

Precedent Cases

[66] The two NZGRA cases referred to by the RIB in their submission, are relevant to the extent that, both cases relate to the use of Diclofenac.  Of particular relevance are the comments provided by the Adjudicative Committees in both of those cases (refer paragraphs [34] Goldstack– and [35] Mitchell), which are endorsed by this Adjudicative Committee.  The fines that were imposed ($3,000), must be tempered by the fact that the Penalty Guide for NZGRA Prohibited Substance offences, differs slightly to the NZTR Penalty Guide – NZGRA penalty starting points relevant to the two cases were based on offence categories from 1 to 5, with penalties ranging from Cat 1 (Disqualification 10 years) to Cat 5 (3 months and or $4,000 fine.

[67] Lucock and Gillespie, and Pertab are relevant because they both involved the use of the Prohibited Substance Meloxicam – an anti-inflammatory substance. The point of difference being that these breaches occurred in Trial Heats, as opposed to a Raceday.  They received fines of $2,800 and $3,000 respectively.

[68] For reasons of consistency and fairness, it is important that due consideration is given to relevant precedent Decisions involving similar offending.  This was recently reinforced in the Appeals Tribunal Decision M Anderson v RIB, published 18 May 2023.  In that Decision, it was said by the Tribunal (at paragraph 29) …References and comparisons to other penalties which are imposed within the racing jurisdiction are common in order to achieve consistency in sentences which may be imposed.

Aggravating and Mitigating Factors

[69] At paragraphs [47] and [48], the RIB outlined aggravating and mitigating factors for the consideration of the Adjudicative Committee. These, together with the Respondent’s oral submissions, have been noted and considered.  In addition, the Adjudicative Committee emphasises the following factors:

1. The Respondent has admitted the charge at the first available opportunity.
2. He has cooperated with the investigation, albeit his cooperation is expected in circumstances such as this.
3. He has a clear judicial record with regard to the use of Prohibited Substances.
4. Diclofenac is permitted at a mass concentration of 50.0 micrograms per litre in urine. In this case, the ‘B’ Sample analysis recorded a level of more than 8 times permitted by the Regulations. This is perhaps indicative of regular use of more than the permitted limit in close proximity to Raceday, which in itself, amounts to a lack of the necessary care and attention. As has been already highlighted in this Decision, as a Trainer with 4 years’ experience and several years working with horses, he should know that he has a responsibility to ensure he is familiar with the Rules and Regulations relating to the use of Prohibited Substances.
5. Although it was said that there were no sinister intentions in relation to the positive result and that it occurred because of carelessness through excessive application, others, including interested parties, casual onlookers and the racing public in general, may well take a different view. Particularly given that the amount of Diclofenac detected, was well above the threshold, the application was within 24 hours of racing and according to the Respondent at paragraph 20, it was used to rub it on the sides of her fetlocks where the swelling is…It is therefore not hard for some, to draw the conclusion, in the absence of any other explanation, that it must have been known to him that the application of Diclofenac would relieve the ‘swelling’ and therefore improve ROCA FUNDEEDA’s performance. And the record shows that ROCA FUNDEEDA did win the race. Thus, in this regard, Rule 920(2)(d) i.e., the need to maintain integrity and public confidence in racing, is deemed to be highly relevant in assessing penalty.
6. Of note, it was said in the Goldsack Decision and worth repeating again, because of its relevance to this matter that:

“Presenting greyhounds to race when they have in their metabolism a prohibitive substance is, or should be, known to all Trainers to be absolutely outside the Rules. It is to ensure that the integrity of all races is not compromised so that the ‘contest’ is on an even playing field. Stringent care is required in the management, treatment, and care of the greyhound before being presented to race. That is a fundamental obligation and requirement of Trainer, and the integrity of the Code depends on it. Deterrence to others is a significant factor in a penalty sanction.”

[70] The RIB submits that a starting point penalty of $3,000 be adopted with appropriate adjustments made at the Adjudicative Committee’s discretion, regarding the mitigating and aggravating factors.

[71] The Adjudicative Committee has determined that a starting point of $3,300 is more appropriate.

[72] In consideration of the aggravating factors, particularly culpability, a $1,200 uplift to the starting point is applied. This takes into account that the breach was detected following a race, as opposed to a Trial Heat, as was the case in Lucock and Gillespie and Pertab. It also takes into account the fact that the connections have suffered a loss due to the disqualification of ROCA FUNDEEDA and forfeiture of stakemoney.

[73] In recognition of mitigating factors, a discount of $1,000 is applied.

[74] Accordingly, after allowances of aggravating factors ($1,200) and mitigating factors ($1,000), a fine of $3,500 is imposed. A penalty, which under the circumstances, the Adjudicative Committee believes is meaningful, reasonable, and proportionate.

Conclusion

[75] As a consequence of the Respondent’s admission of the breach, the charge is deemed to be proved and ROCA FUNDEEDA is disqualified from its first placing.

[76] The Adjudicative Committee directs that the official placings in Race 4, the Liquorland 1200 metre at the Whanganui Racing Club meeting on 23 February 2023, be amended in accordance with this Decision, and all stakemoney earned by ROCA FUNDEEDA for finishing in first place, be forfeited.

[77] In the final result, the Respondent, Class A Trainer Daniel Miller, is fined $3,500 and ordered to pay costs as set out below.

Costs

[78] The Respondent is ordered to pay costs of $1,652.87 for analysis of the ‘B’ Sample.

[79] There is no order for costs in favour of the RIB or Adjudicative Committee as this matter was heard on a Raceday, thus reducing the hearing costs for all parties concerned.