Leitenberger v Racing Queensland
[2012] QCAT 248
•18 June 2012
| CITATION: | Leitenberger v Racing Queensland [2012] QCAT 248 |
| PARTIES: | Siegfried Leitenberger (Applicant) |
| v | |
| Racing Queensland (Respondent) |
| APPLICATION NUMBER: | OCR114-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 18 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the respondent is set aside and in lieu the applicant is disqualified for a period of 8 months. |
| CATCHWORDS: | RACING – where applicant pleaded guilty to presenting a horse in a harness race with a prohibited substance in excess of threshold – whether penalty imposed excessive – whether penalty consistent with comparable cases – where a need for consistency in the imposition of penalties Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Leitenberger appeared in person |
| RESPONDENT: | Racing Queensland was represented by Mr Birch, Chief Steward |
REASONS FOR DECISION
Mr Leitenberger is the owner and trainer of Mr Moseby, a harness racing horse. On 13 March 2012 Mr Moseby competed at Albion Park in race 7. Prior to the race stewards took a pre race blood sample from the horse and a subsequent analysis of that sample established the horse had a total carbon dioxide (TCO2) level in excess of legal limit of 36mmol per litre.
Mr Leitenberger was charged under Rule 190 of Australian Harness Racing Rules which reads:
(1)A horse shall be presented for a race free of prohibited substances
(2)If a horse is presented for a race otherwise in accordance with sub rule (1) the trainer or the horse is guilty of an offence.
The certificate of analysis of the blood sample showed a total carbon dioxide concentration of 37.4mmol/L.
The stewards convened an inquiry on 27 March 2012. During the course of that inquiry Mr Leitenberger frankly discussed the feed regime of Mr Moseby and that the horse was drenched after a race on the Sunday before the relevant event. He also said that he gives the horse bicarb in his feed daily in powder form. There was, he says, nothing unusual about the horse’s treatment prior to the race which would necessarily alert Mr Leitenberger to the increase level of TCO2.
Mr Leitenberger, at the hearing, suggested that sometimes horses have an abnormal reaction to the substance. Although there is no expert evidence in this particular hearing on the point, this Tribunal has heard on other occasions from veterinary experts that the maximum TCO2 level for a horse in work should be no more than about 30mmol/L and that is why, there is a buffer to 36mmol/L to take into account those horses that might naturally show a higher level. Even the stewards were surprised at this level because they had monitored the horse on previous occasions which always showed lower levels after analysis.
As this is a presentation charge, Mr Leitenberger, sensibly, accepted the charge but considers the penalty of 12 months disqualification too severe. As a consequence he has sought to review the steward’s decision.
In deciding upon the penalty, the stewards had regard to three incidents in the early 90’s and as late as 1998 where horses owned by Mr Leitenberger have presented with a prohibited substance. The last in 1998 was a positive swab for Acepromazine, commonly referred to as Ace, which is a drug used to calm a horse down. It is not necessarily performance enhancing. He was disqualified for two years.
The earlier presentation charges related to a pain killing drug which also resulted in a period of disqualification. However, those breaches occurred many years ago and the fact that Mr Leitenberger had no breaches of the rules since 1998 is a matter which must be taken into account.
Recently, in the matter of Abbott v Racing Queensland[1] this Tribunal dealt with a similar presentation charge and made observations about the need for consistency of penalty and attempted to identify, having regard to the respondent’s comparable decisions, the normal penalty for a first offence. The Tribunal concluded that on the available evidence at that time, which was only some weeks ago, it seemed that 6 months disqualification was the normal penalty for a first offence. It also appeared from the spreadsheet of penalties that was supplied to the Tribunal at that hearing, for a second offence a disqualification for between 8 months to 10 months seem to be the norm.
[1] Abbott v Racing Queensland Ltd [2012] QCAT 230.
Mr Abbott had a previous breach of the rules by not presenting the horse for testing after a race at Albion Park when asked to do so by the Stewards. He had an excuse for that, because the owner had removed the horse from the course, but it was still his responsibility to ensure compliance with the request. That breach was taken into account.
The Tribunal accepted Racing Queensland’s concerns about the proliferation of the use of carbon dioxide in harness racing and how it was bringing the industry into disrepute. The imposition of the sanction of disqualification for a period served, hopefully, both as a deterrent.
We also said in Abbott that there was a need for consistency of penalty and although this was difficult to achieve because every case must be determined on its own facts, this case is so closely aligned with Abbott that we think to depart from the disqualification that was imposed in that case would lead to further inconsistency.
Mr Leitenberger has spent 30 years in the racing industry. He has indicated to the stewards and to this Tribunal that he does not propose to continue to participate in the industry. Although he has pleaded guilty to the charge, this offence is one of strict liability so that has limited value in mitigating the penalty that should be imposed. It is however appropriate to take into account his cooperation with the stewards and the open and frank evidence he gave about his treatment of Mr Moseby. In the circumstances, I am of the opinion that an appropriate penalty is 8 months disqualification.
2