Ricky John Gordon t/as Ricky Gordon Racing Stables v Racing Queensland Limited
[2013] QCAT 302
| CITATION: | Ricky John Gordon t/as Ricky Gordon Racing Stables v Racing Queensland Limited [2013] QCAT 302 |
| PARTIES: | Ricky John Gordon t/as Ricky Gordon Racing Stables (Applicant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR099-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 11 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent’s decision of 3 April 2013 is confirmed. 2. The review is dismissed. |
| CATCHWORDS: | HARNESS RACING – APPLICATION FOR REVIEW OF PENALTY – where applicant pleaded guilty to presenting a horse with a prohibited substance in excess of threshold Queensland Civil and Administrative Tribunal Australian Harness Racing Rules 190, 259, 264 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Abbott v Racing Queensland Limited [2012] QCAT 230 Lawlor v Racing Queensland Limited [2012] QCAT 255 McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 Wallace v Queensland Racing [2007] QDC 168 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Gordon is a licensed harness racing trainer. On 8 March 2013 Extreme Makeover, a horse he trained, raced at the Gold Coast. A pre-race blood sample tested showed levels of Total Carbon Dioxide in excess of the permitted threshold.
Australian Harness Racing Rule 190(1) provides that a horse shall be presented for a race free of prohibited substances. On 3 April 2013 Mr Gordon plead guilty to a charge of contravening Australian Harness Racing Rule 190(1) and was disqualified for six months. Mr Gordon has sought a review of that decision as to penalty.
The review proceeding is to be conducted by way of a fresh hearing on the merits with the object of producing the “correct and preferable decision”. In conducting the review, the Tribunal has the functions of the original decision maker and there is no presumption that the original decision is correct.[1]
[1]QCAT Act, s 19 and s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].
The Tribunal has previously acknowledged:
a)that for a first offence the “norm is now about six months disqualification and for a second offence it is about eight -10 months;
b)the desirability of consistency in decisions[2] whilst considering each case on its own facts;
c)the importance of ensuring that horses are presented drug free.[3]
[2] Abbott v Racing Queensland Limited [2012] QCAT 230.
[3] Hansen v Racing Queensland Limited (No 2) [2011] QCAT 610.
The main purposes of the Racing Act 2002 (Qld) is to maintain public confidence in the racing of animals in Queensland for which betting is lawful, ensure the integrity of all persons involved with racing or betting and to safeguard the welfare of all animals involved in racing.[4] Racing Queensland as a control body under the Racing Act 2002 (Qld) is tasked with achieving these purposes.
[4] Section 4.
Penalties are to be considered in light of their deterrence to the individual and to others in the industry and to increase the public’s confidence that such behaviour will not be tolerated.
Mr Gordon contends that the following are matters which the Tribunal ought to consider in mitigation:
a)he has been a harness racing licensee for approximately 25 years and has no qualifications outside harness racing;
b)he is reliant on his income from training and racing horses to support himself and his ill mother;
c)he and his mother reside on the training property and he needs to reside with her as he needs to care for her and assist her in her day to day activities;
d)at the time of the offence he and his mother ran a training establishment and had 42 horses in its care, 35 of which were either owned or leased by Mr Gordon and his mother;
e)at the time of the offence he employed a stable hand who will lose her employment by reason of his disqualification;
f)Mr Gordon performed almost exclusively all tasks associated with running the property and the partnership business because they could not afford to hire others to undertake the roles and provided his labour at no cost;
g)his mother is not physically able to undertake the tasks which are Mr Gordon’s usual responsibility in relation to the horses or the property nor can she afford to pay others to perform this work;
h)he plead guilty at the first available time.
No documentary evidence of Mr Gordon’s or his mother’s financial position has been placed before the Tribunal. The Tribunal is however prepared to accept that a disqualification will impose a certain level of financial hardship on Mr Gordon. The Tribunal has previously accepted that hardship will often flow as a consequence of a disqualification.[5]
[5] Lawlor v Racing Queensland Limited [2012] QCAT 255.
In relation to pleading guilty the Tribunal has previously observed that it is a strict liability offence and does not require knowledge or intention and would have been difficult to dispute the test results.[6] The Appeal Tribunal has not favoured discounts in penalty for pleading guilty in disciplinary proceedings.[7]
[6] Abbott v Racing Queensland Limited [2012] QCAT 230.
[7] McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 at [24].
Mr Gordon has not offered a clear explanation for the elevated levels which would demonstrate that he is blameless. He has provided some potential explanations in terms of changes to the horse’s diet and exercise regime. This is not a case where there is compelling evidence to show a specific mitigating circumstance which might support a more lenient penalty than usual.[8]
[8] Wallace v Queensland Racing [2007] QDC 168.
This is not Mr Gordon’s first offence of this nature. However the last similar offence was a considerable time ago.[9] I accept that Mr Gordon’s good behaviour in the lengthy intervening period is a factor which supports a more lenient penalty than that which might otherwise apply.
[9]7 October 2000 – Australian Harness Racing Rule 195; 20 December 1999 - Australian Harness Racing Rule 190(1).
Taking into account all of the factors advanced by Mr Gordon I consider an appropriate penalty in the circumstances is a disqualification for six months.
Mr Gordon seeks any disqualification to be conditioned[10] so that he may:
a)continue to reside at the house he shares with his mother;
b)undertake property maintenance work; and
c)undertake general horse husbandry of horses not in racing work or condition.
[10] Australian Harness Racing Rule 259(4) and (6).
Racing Queensland acknowledges that Mr Gordon while disqualified may reside at his property and carry out horse husbandry duties provided that he complies with Australian Harness Racing Rule 259(1)(i) and Australian Harness Racing Rule 261(1) and (2).
I am not satisfied that Mr Gordon has demonstrated why it is necessary or desirable to condition the disqualification as requested and therefore I do not find that it ought to be conditioned.
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