$3500 fine for prohibited substance rule breach

[1] THE CHARGES:

Information A15804:

The Information alleges that on 6th July at Ashburton the Respondent, as the Registered Trainer and person in charge of the horse REINIMIN PATRON presented that horse at the Mid Canterbury TOA trials for the purpose of engaging in and did engage in Race 3, Mobile Pace (R43 and faster), and failed to present that horse free of prohibited substances namely, Phenylbutazone, Oxyphenbutazone, Ketoprofen and Furosemide.

Information A15805:

The Information alleges that on 6th July at Ashburton the Respondent, as the Registered Trainer and person in charge of the horse ROCKNROLL DIVA presented that horse at the Mid Canterbury TOA trials for the purpose of engaging in and did engage in Race 5, Non-Winners Pace, and failed to present that horse free of prohibited substances namely, Phenylbutazone, Oxyphenbutazone and Ketoprofen.

Mr Irving presented an Authority to Charge dated 28th July 2021, pursuant to Rule 1108 (2) of the New Zealand Rules of Harness Racing, signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board.

[2] PLEA:

The Charges and Rules were read to the Respondent after which he confirmed that both charges were admitted.

[3] THE RULES:

Rule 1004A (2) provides:

(2) A horse shall be presented for a race free of prohibited substances;

(4) When a horse is presented to race in contravention of sub-rule (2) . . . the trainer of the horse commits a breach of these Rules.

[4] SUMMARY OF FACTS:

Mr Irving presented the following agreed Summary of Facts:

1.­­­­­­­­­­­­­­­­­­­ The Respondent, Trent John Yesberg, is a Licensed Public Trainer under the Rules of New Zealand Harness Racing. He is 30 years old  and has held a Trainer’s Licence since 2015.

2. REINIMIN PATRON is a 5-y-o gelding and ROCKNROLL DIVA a 4-y-o mare, both trained by Mr Yesberg.

3. Both horses were presented to race by Mr Yesberg at the Mid Canterbury TOA Trials at Ashburton Raceway on Tuesday 6th July 2021, where blood testing was conducted by the RIB.

Information A15804

4. A pre-race blood sample was taken from REININIM PATRON by veterinarian, Dr Donna Williamson, at 10.38am. The blood sample (#159169) was taken in the presence of Mr Yesberg.

Information A15805

5. A pre-race blood sample was taken from ROCKNROLL DIVA by veterinarian, Dr Donna Williamson, at 10.42am. The blood sample (#159170) was taken in the presence of Mr Yesberg.

6. Both samples were sent to the New Zealand Racing Laboratory Service (NZRLS) who, on 15th July, issued certificates detailing Phenylbutazone, Oxyphenbutazone (a metabolite of Phenylbutazone) and Ketoprofen were detected in both samples.

7. Furosemide was also detected in the sample obtained from REINIMIN PATRON.

8. Phenylbutazone is a nonsteroidal anti-inflammatory drug and cyclooxygenase inhibitor. It is a potent pain reliever, antipyretic, and anti-inflammatory. In the horse, it is used commonly for lameness resulting from soft-tissue injury, muscle soreness, bone and joint problems, and laminitis. It has a variable withholding time of approximately 7 days.

9. Ketoprofen is a potent pain reliever, fever reducer and anti-inflammatory medication. It is often prescribed for soft tissue injury, bone and joint problems or laminitis. Ketoprofen is also prescribed to reduce or control fevers due to viral or bacterial infections. It has a recommended withholding time of 4.2 days.

10. Furosemide, used in racehorses as “Lasix”, is an anti-bleeding medication to prevent respiratory bleeding in horses running at high speed. It has a recommended withholding time of 3 days.

11.  On 15th July, Mr Yesberg was interviewed at his property in Ohoka and informed of the positives. He took no issue with the testing process and admitted to treating both horses with “Bute” oral paste and an IV Ketoprofen injection for feet issues and to giving Lasix to REINIMIN PATRON to assist with managing its bleeding.

12. In explanation he stated that he regularly uses these products and knows their withholding times, but elected to trial the horses a day earlier than scheduled at Ashburton due to the projected inclement weather forecast for the Rangiora Trials the following day.

13. He also stated that both horses had issues with their feet.  

14. The items detailed were located in Mr Yesberg’s medicine cabinet in his stables.

15. Mr Yesberg has been a Licensed Trainer for approximately six years. He has no previous breaches of the Prohibited Substance Rules.

[5] PENALTY SUBMISSIONS OF INFORMANT:

1. The Respondent, Trent John Yesberg, is a Licensed Public Trainer under the New Zealand Rules of Harness Racing. He is 30 years old and has held a Trainer’s Licence since 2015.

2. He has admitted two breaches of the Rules in relation to racing REINIMIN PATRON and ROCKNROLL DIVA at the Ashburton Trials on 6th July 2021, while not free of prohibited substances.

3. The drugs concerned and the details of their administration are contained in the Summary of Facts which has been agreed.

4. A report from Mr Yesberg’s Veterinarian confirms that both horses were being treated with anti-inflammatories following re-shoeing and REINIMIN PATRON, as a suspected “chronic low-grade bleeder”, was also being treated with Lasix.

5. Entries in Mr Yesberg’s treatment diary detailed the following:
REINIMIN PATRON – Bute 27,28,29,30th June; Ketoprofen 3 & 4th July; Lasix before work 4th July (Trial Wed)
ROCKNROLL DIVA – Bute 26, 27, 28, 29th June; Ketoprofen after fast work Sunday, 4th July 15ml

6. The penalties which apply to this case are detailed under Rule 1004D:
(1) A person who commits a breach of a rule in rules 1004A, 1004B, or 1004C 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.

(2) Any horse connected with a breach of the rule must be disqualified from the race and may in addition be disqualified for a period not exceeding five years.

7. Sentencing Principles –
The four principles of sentencing 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 that 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 JCA (now Racing Integrity Board) for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

The first three principals have relevance in this case.

8. Aggravating Factors –
(i) Mr Yesberg treated both horses with a combination of anti-inflammatory / pain relief medication and one horse also with an anti-bleeding product. He stated that he knew the withholding time of each prohibited substance and yet elected to start the horses at the Ashburton trials with that knowledge.

(ii) All previous similar cases as listed below have been positives for a single treatment / substance (note that Oxyphenbutazone is a metabolite of Phenylbutazone). On this occasion Mr Yesberg has administered two and three different medicines respectively which have a range of recommended withhold times from 3-8 days.

(iii) The deliberate use of, in this case two, non-steroidal anti-inflammatories when racing may mask a horse’s injury and associated pain and therefore increase the risk of further injury to that horse and the drivers participating in the trial should the horse go amiss. Following the 2015 case of RIU v McDonald & Donaldson, the RIU were directed to increase its drug testing at trials. The Committee in that decision commented:
The anti-inflammatory substance phenylbutazone would not be prohibited on race days or at trials if it were not the case that New Zealand Thoroughbred Racing has been persuaded by a substantial body of veterinary advice that the drug can affect the performance of a horse that is racing or taking part in trials.

9. Mitigating Factors –
(a) Mr Yesberg has been cooperative throughout the RIB process and has admitted the charges at the first available opportunity.

(b) Both horses swabbed clear in their first respective races following the trial, being the same day that Mr Yesberg was notified of the positives.

(c)  Mr Yesberg has no previous breaches of the Prohibited Substance Rules, having been training for six years.

10. The JCA (now RIB) Guidelines recommend a starting point of $8,000 for a first offence. Historical cases indicate that where the breach occurs in a trial and not a raceday, a reduction from the starting point is applied. The following cases may provide assistance and guidance regarding penalty:

HARNESS
• RIU v Barron (2018) – positive to Flunixin (NSAID) at a trial meeting. No source of the positive identified. $3000 fine and horse disqualified. The Committee commented that this was not a case of negligent or deliberate administration or poor timing and therefore B’s culpability was low.

• HRNZ v Mackenzie (2012) – positive to Phenylbutazone at a qualifying trial. Defended. $2000 fine plus costs.

• RIU v Vince (2021) – positive to Phenylbutazone and Oxyphenbutazone at a race meeting. The source of the positive was not identified but likely to be through contamination. $3,400 fine and the horse disqualified.

THOROUGHBRED
• RIU v Alexander (2020) – positive to Phenylbutazone and Oxyphenbutazone at a trial meeting. $2,400 fine and horse disqualified. The Committee commented that there was no evidence before it to suggest a deliberate intent to deceive or gain an advantage and that the administration was an honest mistake due to a communication breakdown between the training partners.

• RIU v Pertab (2019) – positive to Meloxicam (NSAID) at a trial meeting. The source of the positive was not identified but likely to be through contamination. $3,000 fine and horse disqualified.

• RIU v Lucock & Gillespie (2018) – positive to Meloxicam at a trial meeting. Admitted administration a few days prior to the trial. $2400 fine and horse disqualified.

• RIU v Brick (2016) – positive to Phenylbutazone and Oxyphenbutazone at a trial meeting. $3,000 fine and horse disqualified.

• RIU v Fraser-Campin & Campin (2016) –positive to Phenylbutazone and Oxyphenbutazone at a trial meeting. $3,000 fine and horse disqualified.

While these cases all deal with a “single” positive, the Committee’s comment on penalty for two breaches in RIU v Towers (2015) may be of assistance:

An approach in line with that adopted in McInerney supports the view that to impose a quantum for each breach, albeit resulting from the same on-going action – in this case Mr Towers unintentionally providing Clenbuterol on a regular basis – would result in a penalty that would be disproportionate and deemed excessive in the circumstances. The totality principle leads the Committee to ensure that the overall penalty is appropriate in the specific circumstances of Mr Towers’ offending.

11. Under Rule 1004D (2), REINIMIN PATRON and ROCKNROLL DIVA are required to be disqualified from their respective trials on 6 July.

12. Conclusion –
When determining penalty, the RIB submit that the Committee have regard to the purpose of the proceedings, which include: to ensure the rules are complied with, to uphold and maintain the high standards expected of trainers relating to prohibited substances and to protect the other participants in racing and the betting public.
The RIB submits that the two breaches can be dealt with by way of a monetary penalty. The RIB also submits that the culpability of Mr Yesberg is higher than in that of Barron and Alexander and therefore the appropriate penalty is a $5,000 fine.

13. The RIB is not seeking costs.

[6] SUBMISSIONS OF THE RESPONDENT:

Mr Yesberg produced written submissions which are summarised here:

1.  The two horses were under veterinarian-supervised treatment. Mr Yesberg produced a report by Dr Sam Burrows BVSc BAgSc, of Rangiora Veterinary Centre. That report confirmed that both horses were under his care and being treated with anti-inflammatories in the form of Phenylbutazone and Ketoprofen following reshoeing for hoof balance and to ease the inflammation.  Lasix (Furosemide) was dispensed for REINIMIN PATRON, which was described as “a chronic low grade bleeder”.

2. He was not intending to attend the Ashburton trials meeting, as there were trials scheduled for his home track, Rangiora, the following day, 7th July. The weather forecast for that day was “terrible” and he was concerned that the Rangiora trials would be cancelled. He made a “last-minute decision” to go to Ashburton.

3. Both horses raced the following week at Addington returning clear samples and both have subsequently been post-race swabbed, returning clear samples. Both horses have shown form in two subsequent starts (REINIMIN PATRON, two 3rds and ROCKNROLL DIVA, a 4th and a 3rd).

4. Mr Yesberg produced extracts from his training diary which set out details of treatment given to the horses and he submitted that these confirmed that, had the horses trialled at Rangiora on 7th July, they would have returned clear samples.

5.  Mr Yesberg believed that, were he appearing before a Court of Law, he would be treated sympathetically and discharged without conviction. He submitted that his explanation for the breaches warranted similar treatment from this Committee.

6.  He submitted that there was no pecuniary advantage to be gained at the trials and that it costs him more to go to the trials than to a race meeting. Neither horse was for sale and, therefore, there was no intent to “juice” them up to sell them.

7.  Mr Yesberg expressed concern as to the harm to his reputation which would result in financial hardship and, he submitted, loss of horses from his stable.

8.  In none of the cases, mentioned by the Informant in his submissions, were the horses under a veterinarian-supervised program. He made particular reference to the Alexander case in which a horse had been treated with “bute” the day before the trials by one partner without the knowledge of the other training partner (and being unaware that the other partner had entered the horse to trial).  Each partner was fined $1,200 for what, the Judicial Committee accepted, was an unintentional breach of the rules.

9.  The drugs were administered in accordance with a supervised program to test clear on 7th July and he “simply forgot about the ramifications of trialling them a day earlier”.

10. It was only after the bloods were taken that it occurred to him that he “may have cut things a bit fine”. If he had been attempting to “subvert” the Rules, Mr Yesberg submitted, when he heard that a Racing Investigator was on course doing blood testing, he could have “turned around and headed home”.

[7] REASONS FOR PENALTY:

1. Mr Yesberg took two horses, trained by him, to the trials meeting at Ashburton on 6th July last. He explained that it had been his original intention to trial those two horses at his “local” meeting at Rangiora the following day but, noting that the weather forecast for the Rangiora trials was not good, raising the possibility that the trials might not be held, he made what he described as a “last minute decision” and took them to Ashburton.

2. Mr Yesberg had been treating both horses for foot problems and, in the case of REINIMIN PATRON, with Lasix for bleeding, under a program of treatment prescribed by his Veterinarian, Dr Burrows. He had calculated the required withholding periods based on the horses trialling at Rangiora on 7th July. Noting an unfavourable weather forecast for that date he, unwisely as it turned out, decided to change his plans and take the two horses to trial at Ashburton on 6th July. The difference of that one day, Mr Yesberg believed, was the reason for the horses returning positive tests to the prohibited substances the subject of these charges. In other words, had the horses raced at Rangiora on 7th July, as originally planned, and been blood-tested on that day, the samples would have been tested negative, he submitted.

3. He further stated that he “simply forgot about the ramifications of trialling them a day earlier” and that “it was only after the bloods were taken that it dawned on me that we may have cut things a bit fine”.

4. That explanation shows some naivety on Mr Yesberg’s part and the Committee has two observations to make regarding that explanation.  Firstly, Mr Yesberg had left little margin for error in terms of the withholding times, based on the entries in his training diary. In his own words, he “cut things a bit fine”. Secondly, it is quite hard to believe that he did not advert to the possibility that it was risky to trial the horses a day earlier than planned, particularly since he was already “cutting things a bit fine” with withholding periods. We find that he was negligent as far as that second observation is concerned if he did, indeed, not consider the risks involved in flirting with the withholding periods.

5.  Had Mr Yesberg exercised better judgement then, notwithstanding his belief that REINIMIN PATRON needed a trial before his next engagement at Addington on 15th July, he would have either waited to see whether the Rangiora trials meeting would be held (which the Committee notes it was) and, if not, then to dismiss any thoughts of trialling the horse that week. In the event, Mr Yesberg’s decision to go the Ashburton trials turned out to be the worst decision he could have made. Not only was that decision naïve, but also it was negligent.

6.  It was submitted on behalf of Mr Yesberg that a discharge without conviction would be an appropriate outcome. That is not an option. The onus on Trainers to present horses to the races (or trials) free of prohibited substances is a very strict one requiring the utmost care to ensure that the onus is met and, if not, consequences must follow to apply the principles of sentencing as set out in para 7 of the informant’s penalty submissions and to uphold the integrity of harness racing.

7.  The Penalty Guide starting point for a first presentation, mid-level offence is a fine of $8,000. Most fines for first presentation offences have been less, even much less, than that starting point. The Committee has considered the fact situations in a number of similar cases and the penalties imposed in those cases. The relevant cases are those which involved presenting a horse to a trials meeting and, in those cases, it is acknowledged that the penalty for presenting to a trials meeting should be on a lower scale than the penalty for presenting to a race meeting. The Alexander case is the most recent case in which this approach has been adopted, the Judicial Committee in that case adopting a starting point of $3,000 for a breach” at the lower end”. We agree that this is the appropriate approach and, therefore, we have adopted a starting point for penalty in this case of $5,000. The degree of culpability in the present case, we believe, is higher than in Alexander and, accordingly, we have adopted a higher starting point.

8.  Turning to look at penalties imposed in earlier cases, in both the Harness and Standardbred Codes, and in particular those referred to us by the Informant in his penalty submissions, fines range between $2,000 and $3,400 but we note that the latter fine was in a case involving presenting to a race meeting. Mr Yesberg has submitted that the best guidance for this Committee is from the case of RIU v Alexander (2020) – see para 8 of the Respondents’ submissions – in which the Committee found “no evidence to suggest a deliberate intent to deceive or gain an advantage on the part of the Respondents” and that the breach was “nothing more than an honest mistake due to a communication breakdown between the training partners”. The training partnership was fined the sum of $2,400.

9.  The Committee assesses the culpability of Mr Yesberg as being greater than in the Alexander case. We do not accept that Mr Yesberg has made an “honest mistake” but, rather, has been negligent in not giving thought to the effect on withholding periods of trialling the horses one day earlier than the date on the basis of which the withholding periods were calculated. Furthermore, some of the withholding periods seem to have been calculated with a quite fine margin for error. However, we do accept that there was no deliberate intent on Mr Yesberg’s part.

10. One matter to which the Committee has given earnest consideration is the approach to be adopted when considering that there are two breaches. In this regard, we have adopted the approach of the Judicial Committee in Towers (2015) – two breaches involving one horse – that to impose a penalty for each breach would result in a penalty that would be disproportionate and excessive in the circumstances. A totality approach to penalty is preferable in the present case involving, as it does, the facts relating to the two horses, REINIMIN PATRON and ROCKNROLL DIVA, involving for all intents and purposes one course of conduct and the same fact situation. We intend to adopt a totality approach. Essentially, Mr Yesberg is no more culpable because there are two horses involved.

11.  Mr Yesberg has been licensed since the 2015 season when he took out a Licence to Train. He has held a Public Trainer’s Licence since the 2019 season. To the end of July 2021, he has had a total of 269 runners for 35 winners, 26 2nds and 29 3rds. Young people are the future of the Harness Racing Industry and Mr Yesberg is one of those. He is, clearly, a promising young Trainer and we do not wish to be responsible for driving him out of the Industry. We have noted his financial situation and the need for rehabilitation in fixing penalty.

12.  Mitigating factors advanced by the informant are Mr Yesberg’s cooperation during the investigation of the charges and his admission of the breach, his previous good record and, finally, that both horses swabbed clear in their first races following the trials, being the same day that Mr Yesberg was notified of the swab results. Further, the Committee was impressed by his genuine remorse shown at the hearing of the charges, although it did seem to us that he may not have fully appreciated the seriousness of the charges. For these factors, Mr Yesberg is entitled to a discount from the starting point of $5,000 and we have fixed that discount at $1,500.

13. In determining an appropriate penalty, the Committee has had regard to the usual principles of sentencing – to hold Mr Yesberg accountable for his offending, to promote in him a sense of responsibility for and an acknowledgement of that offending and the need to denounce his conduct. We have also taken into account the need to deter others from committing the same or a similar breach.

14.  It has been said many times that there is nothing more likely to bring down the integrity of the Racing Industry generally than the fact that horses perform at meetings (including trials meetings) when they have been administered a prohibited substance, in whatever circumstances, and it is the obligation of Adjudicative Committees to denounce and deter that practice. It is important for public confidence in the industry that horses race free of any prohibited substance

[8] DISQUALIFICATION OF HORSES:

1.  REINIMIN PATRON is disqualified from Race 3 (Mobile Pace R43 & faster) at the Mid Canterbury TOA trials meeting at Ashburton Raceway on 6th July 2021.

2.  ROCKNROLL DIVA is disqualified from Race 5 (Non-Winners Pace) at the Mid Canterbury trials meeting at Ashburton Raceway on 6th July 2021.

[9] COSTS:

The hearing took place on a raceday and, accordingly, there will no order as to costs.

[10] CONCLUSIONS:

Mr Yesberg is fined the sum of $3,500.