Victorian Civil and Administrative Tribunal|2010-06-25|Before: Judge J, Iain Ross J, Bell J

Corstens v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1106 (25 June 2010)

Racing Act 1958 (Vic) - Breach of Australian Rules of Racing Rule 178 - application for review of a decision of the Racing Appeals and Disciplinary Board - plea of guilty - review of penalty - consideration of principles relevant to penalty - penalty imposed by Board affirmed

President Justice Iain Ross; Judge John Bowman and His Hon. Francis Dyett

Corstens v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1106

That the training licence of Mr Leon Corstens be suspended for a period commencing at midnight on 28 February 2010 and expiring at midnight on 13 September 2010.

Starspangledbanner ("the horse") was trained by the Applicant, Leon Corsten, at all relevant times. The horse (then a three year old colt) competed in the Victorian Owners and Breeders Hcp ("the race") on 1 August 2009 at Caulfield Racecourse. The race was run at approximately 12.45pm. Starspangledbanner won the race.
A pre-race urine sample was taken on the horse's arrival at the course at 11.57am (sample no. V153242) and a post-race urine sample was taken from the horse at 1.11pm (sample no. V153247).
The pre-race sample returned a positive reading in the low nanogram range for the substance altrenogest.
The subsequent confirmatory analysis of the reserve urine and control samples for sample V153242 undertaken by the Australian Racing Forensic Laboratory confirmed the presence of altrenogest in the sample.
Altrenogest is a synthetic hormone which acts on the mammalian urogenital and endocrine systems and when detected on race day in colts, geldings or entires (male horses) is a prohibited substance pursuant to Rule 178B(1) and (2) of the Australian Rules of Racing (the Rules).
On 24 November 2009 the Respondent, Racing Victoria Limited ("RVL"), charged Mr Corstens with a breach of Rule 178 of the Rules, we deal later with the terms of Rule 178. The charge was heard by the Racing Appeals and Disciplinary Board ("the Board") on 2-3 February 2010. The Board found the charge proved and suspended Mr Corstens for six months, commencing at midnight on 28 February 2010 and expiring at midnight on 31 August 2010.
On 17 February 2010 Mr Corstens filed an application to review the Board's decision. On 1 March 2010 Justice Bell granted a stay of the Board's decision to suspend Mr Corstens. The stay remained in place until midnight on 13 March 2010 to enable the horse to contest the Newmarket Handicap.
We propose to first deal briefly with the Board proceedings before turning to the nature of these review proceedings and the issue of an appropriate penalty.

Mr Cortsens was found guilty of a breach of Rule 178, which states:

When any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be punished.

The relevant offence is proved by establishing three elements:
- (i) a horse was brought to a racecourse for the purpose of engaging in a race; and
- (ii) a prohibited substance is detected in any sample taken from the horse prior to or following the horse running in a race; and
- (iii) the accused is the trainer or any other person who was in charge at the relevant time of the horse.
It is relevant to note that a breach of Rule 178 does not require a finding as to how the prohibited drug came to be in the horse's system. This may be contrasted with a charge under Rule 175(h), which provides that the Stewards may penalise:

'... (h) Any person who administers, or causes to be administered, to a horse any prohibited substance -

(i) for the purpose of affecting the performance or behaviour of a horse in a race or of preventing its starting in a race; or

(ii) which is detected in any sample taken from such horse prior to or following the running of any race.'

In Homann[1] Judge Williams, constituting the Racing Appeals Tribunal, dealt with the distinction between offences under Rules 178 and 175(h):

'... this particular offence against Rule 175(h)(ii) is a significant offence, a serious offence. The more common cases are those against Rule 178, the presentation at the race track of a horse containing a substance that it shouldn't contain or a substance in excess of the threshold.

The Tribunal considers that the actual offence against 175(h)(ii), which requires an element thereof, the actual administration of the substance to be more significant, more serious.'

We respectfully agree with his Honour's observation, in our view an offence under Rule 175 is the more serious as it involves, among other things, an intention on the part of the person charged, whereas intention is not a necessary element of a charge under Rule 178.
The Board's reasons for imposing a penalty of six months suspension are encapsulated in the following extract from its decision:

'In this case, the Board has considered submissions made by counsel for the Stewards, Mr Burns, and counsel for Leon Corstens, Mr Sheales. Counsel for the stewards provided the Board with the results of two cases involving altrenogest. Both attracted fines by way of penalty. One was for a first offence, the other was for a second offence, the earlier offence being 12 years prior. As the facts and circumstances relating to these offences were not provided, the Board finds these cases of little assistance.

The Board was also informed that in relation to past drug-related offences, Leon Corstens is in the top level of offenders. The Board was provided with the High Court case of Veen and has taken into account the principles enunciated therein, relating to the relevance of previous offences and sentencing principles generally.

The Board is satisfied that having regard to the facts and circumstances of this case and his previous history of drug-related offences under the Rules of Racing, Leon Corstens has demonstrated a continuing reckless indifference to his responsibilities as a licensed trainer to present horses trained by him free of prohibited substances.

Between 1996 and up to the commission of this offence, Leon Corstens has committed six drug-related offences, with penalties ranging from fines and periods of suspension. His most recent suspension of 18 months was imposed by this Board on 25 July 2005, expiring on 6 February 2007. That suspension was imposed for a TCO2 offence under AR.178. On that occasion, the Board had this to say:

One should have thought that in view of this unhappy history, coupled with the warnings previously given to you on appeal on two previous occasions, that you would have gone to great lengths to ensure that you did not offend again. Regrettably, such was not the case. The Board is not here to penalise you for your past transgressions but in arriving at an appropriate penalty, it is unable to ignore your dismal record of offending. The principle of special deterrence applies in your case. Other matters which the Board has taken into account are general deterrence, the integrity of the racing industry and the need to impose a penalty which will act in denunciation of your conduct.

Similarly in this case, the Board is not penalising you for your previous offences.

Mr Sheales has made a number of submissions which the Board has taken into account. The Board accepts that altrenogest did not have an anabolic effect. However, the Board finds that the drug may or can modify the behaviour of male horses.

Under Rule AR.178, the Board is not required to make a finding in relation to how the drug came to be in the horse's system. Despite Mr Sheales' submissions, the Board is not prepared on the evidence before it to draw inferences as to how this occurred. However, there is clear evidence that stable procedures relating to drug administration were deficient.

In the circumstances of this case, the Board is of the view that the appropriate penalty is a period of suspension of six months, to commence at midnight on 28 February 2010 and to expire at midnight on 31 August 2010.'

Section 83OH(1) of the Racing Act 1958 provides that a person whose interests are affected by a decision made by a Racing Appeals and Disciplinary Board may apply to the Victorian Civil and Administrative Tribunal (the Tribunal) for review of that decision. Time limits apply to applications for review.
Mr Corstens is a person whose interests are affected by the decision subject to review and that the application for review was made within the 28 day time period specified in s 83 OI.
The Tribunal's functions in reviewing a decision of the Board are not appellate. On review the Tribunal stands in the shoes of the original decision maker and must determine the correct decision on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision subject to review. The Tribunal is not confined to the material upon which the original decision was made and may receive evidence or material which was not before the original decision maker.[2]
The proceedings before us are only concerned with the question of penalty as Mr Corstens now pleads guilty to a breach of Rule 178.

The power to impose a penalty for a breach of the Rules is primarily protective, to preserve the integrity of racing; but such penalties are also, by their nature, punitive.
No issue was taken with the proposition that in determining an appropriate penalty it is necessary to balance just punishment; specific and general deterrence; denunciation; the preservation of the integrity of racing; and rehabilitation.[3]
The range of penalties open to be imposed for any breach of the Rules is set out in Rule 196:

'(1) Subject to subrule (2) of this Rule any person or body authorised by the Rules to punish any person may, unless the contrary is provided, do so by disqualification, suspension, reprimand, or fine not exceeding $75,000. Provided that a disqualification or suspension may be supplemented by a fine.

(2) In respect of a breach of AR137A the Stewards may in addition to the penalty options conferred on them under subrule (1) of this Rule order the forfeiture of the rider's riding fee and/or forfeiture of all or part of the rider's percentage of prize money notwithstanding that the amount exceeds $75,000.

(3) Unless otherwise ordered by the person or body imposing the penalty, a penalty of disqualification or suspension imposed in pursuance of subrules (1) and (2) of this Rule shall be served cumulatively to any other penalty of suspension or disqualification.'

Mr Sheales, counsel for Mr Corstens, contended that the essential features which are relevant to the question of an appropriate penalty in the instant case are:
- (a) that altrenogest being detected from the horse at the low nanogram level was as a result of an unintended contamination 'due to a feed or physical contamination at the stable or elsewhere';
- (b) that there is no basis for inferring carelessness, negligence or disregard of the Rules by Mr Corstens;
- (c) that altrenogest is not a performance enhancing substance;
- (d) that in other altrenogest cases, the facts being decidedly more culpable (ie. deliberate administration in ignorance of the Rules) fines were determined to be an appropriate penalty;
- (e) that Mr Corstens' prior convictions for drug related offences against the Rules do not, in the circumstances of the instant case give rise to the imposition of a more severe penalty than would otherwise be warranted;
- (f) that with only two other reported cases of offences involving altrenogest, the substance could not be said to be a particular concern due to prevalence of like offences generally;
- (g) altrenogest is a substance that a trainer is properly allowed to possess and use in a racing stable; ie. it is not an inherently illegal substance, detection of which raises suspicions as to deliberate administration or malfeasance in itself; and
- (h) that Mr Corstens has pleaded guilty.
On the basis of these matters, counsel for Mr Corstens submitted that considerations such as general and specific deterrence, the confidence in and/or integrity of racing and denunciation, attract no tangible weight in the circumstances of this case.
It was submitted that at first instance the Board should have imposed either a reprimand or a small fine. In view of the fact that Mr Corstens has already served a suspension of some three and a half months, counsel for Mr Corstens submitted that no fine should now be imposed.
The matters advanced on behalf of Mr Corstens may be conveniently grouped into four categories:
- ➢ the nature of the offence
- ➢ parity
- ➢ prior offending
- ➢ the plea

Altrenogest is a synthetic progestogen registered for oral use in female horses. It is a prescription animal medicine, so can only be supplied by persons authorised to prescribe it, such as veterinarians. It is in a liquid form and may be administered to horses by squirting directly into the mouth or added to feed.
Altrenogest is widely used in female breeding horses to control the reproductive cycle and, less commonly, to support pregnancy. In female racehorses altrenogest is used to suppress the onset of oestrus and so avoid the undesirable behavioural changes that may accompany oestrus. The recommended dose is 12.5ml daily.
The manufacturers of Regu-Mate, the most common brand of altrenogest, advise that altrenogest is contraindicated in males as it can have deleterious effects on fertility. The use of altrenogest in males can also result in a suppression of typical male behaviour within two to three days of commencing administration. Typical male behaviour includes aggression towards other horses and/or people and excitement in the presence of females.
We accept that altrenogest is not an inherently illegal substance, detection of which raises suspicions as to deliberate administration or malfeasance in itself. Altrenogest does not have an anabolic effect, but it can modify the behaviour of male horses.
It is common ground that a reading of altrenogest in the low nanograms level detected in the sample from the horse is consistent with:
- (i) Secondary exposure through contamination of the horse's feed or feed containers with small quantities of altrenogest from contaminated hands used with the administration of altrenogest to mares at the trainer's stable; and/or
- (ii) Secondary exposure due to contamination of a bit, bridle or a head collar worn by a recently treated mare at the trainer's stable, during transport or at the races
The Board declined to make any finding as to how the drug came to be in the horse's system but noted that 'there is clear evidence that stable procedures relating to drug administration were deficient'. There was no challenge to that observation on review.
In the review proceedings RVL conceded that it 'is not in a position to say how the substance came into the horse's system and cannot allege an intentional administration'. RVL also conceded that it 'cannot refute a suggestion that altrenogest found its way into the system of Starspangledbanner due to a feed or physical contamination at the stable or elsewhere'.[4]
In the circumstances, and having regard to the deficiencies in Mr Corstens' stable procedures relating to drug administration, we accept Mr Corstens' contention that the altrenogest detected was the result of unintended contamination 'due to feed or physical contamination at the stable or elsewhere'.
Mr Corstens gave evidence before the Board regarding his stable's practices concerning the administration of Regu-Mate to female horses, in particular:
- (i) he sprays the Regu-Mate on the horse's feed when it is in the feed bin and then stirs the feed by hand to mix it in[5]
- (ii) he does not wear gloves when mixing in the Regu-Mate[6]
- (iii) he does not wash his hands after mixing in the Regu-Mate[7]
- (iv) there have been times when he has administered Regu-Mate to a horse without documenting it in the treatment diary or anywhere else[8]
- (v) he was unaware that Regu-Mate was a prohibited substance.[9]
These practices reflect a substantial level of carelessness on Mr Corstens' part when dealing with a prohibited substance which can have a deleterious effect on male horses. We find, as a matter of inference, that the unintended contamination in this case was a result of Mr Corstens' carelessness.

Counsel for Mr Corstens pointed to two other cases of offences involving altrenogest;
- (i) - 5.6.09: NSW Stewards: Trainer: Mr. John McGregor - Horse: Surprise Strike (raced 28.2.09): pleaded guilty to a charge laid under rule 175(h)(ii) - the trainer admitted to a deliberate administration, pleading ignorance of the rule - fined $5,000.00

(j) - 1.8.09: NSW Stewards: Trainer: Mrs. Patricia Anderson - Horse: Shoalhaven Prince (raced 11.4.09) - pleaded guilty to a charge under Rule 178 - fined $7,500.00

In the first matter the trainer had one prior which was 12years old[10] and in the second matter it was a first offence. No further information was provided as to the facts and circumstances relating to these two cases. Given the limited information available and the fact that each case turns on its own facts, these two matters are of very limited assistance to the determination of an appropriate penalty in the instant case.

On six previous occasions Mr Corstens has been found to have breached Rule 178:

$10,000.00 fine varied on appeal to a $4,000.00 fine

4 month suspension varied on appeal to a $6,000.00 fine

18 month suspension (7 August 2005 - 6 February 2007)

Mr Burns, counsel for RVL, submitted that Mr Corstens was at the 'top level' in relation to other trainers who have breached the Rules.[11]
Mr Sheales drew our attention to the High Court's judgment in Veen v The Queen (No. 2).[12] In that case, their Honours Mason CJ, Brennan, Dawson and Toohey JJ deal with the relevance of prior offending to the imposition of a penalty:

'There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 642, [650]]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.'

We have applied these observations in our consideration of the present matter.
Mr Sheales contended that Mr Corstens' prior breaches of the Rules are irrelevant given the circumstances of the instant case.
We do not agree. As stated previously, in our view the unintended contamination in this case was a direct result of Mr Corstens' carelessness in the manner in which he has administered Regu-Mate and his lax stable practices in relation to the handling of prohibited substances.
We accept that the 1979 offence is not relevant, due to the passage of time. However it seems to us that Mr Corstens' other prior breaches and his failure to modify his stable procedures relating to drug administration support the imposition of a substantial penalty in aid of specific deterrence.

The fact that Mr Corstens has admitted the charge is a mitigating factor in his favour. Mr Sheales conceded, properly in our view, that very little weight could be attributed to the plea as the offence in question was one of strict liability. We also note that the charge was fully contested before the Board. The plea has resulted in some, albeit limited, saving of public resources and we have taken that matter into account in determining penalty, despite the fact that we are not persuaded that the plea is indicative of remorse. Indeed it was not put on Mr Corstens' behalf that remorse was a mitigating consideration in this case.

Having regard to all the circumstances, including the nature of the offence, the deficiencies in Mr Corstens' stable procedures relating to drug administration, Mr Corstens' prior breaches of Rule 178 (which support the imposition of a substantial penalty in aid of specific deterrence), and the plea - we have determined that the penalty imposed by the Board was appropriate in all the circumstances and we have decided to affirm the Board's decision.
The original period of suspension was for six months to commence at midnight on 28 February 2010 and to expire at midnight on 31 August 2010. Mr Corstens' then had the benefit of a stay order in relation to his suspension. On 1 March 2010 Justice Bell stayed the Board's order pending a further hearing, and on 10 March his Honour made an order staying the Board's decision until 11.59 on 13 March 2010. In effect the Board's order was stayed for 13 days. It follows that the period of Mr Corstens' original suspension should be extended from 31 August to midnight on 13 September 2010.

[1] (THO) [2009] VRAT 2 (Unreported, Judge Williams, 24 March 2009).

[2] See s 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), Davidson v Victorian Institute of Teaching [2006] VSCA 193 (Unreported, Maxwell P, Chernov and Neave JJA, 6 September 2006). In some circumstances it will be appropriate for the Tribunal to take the findings and determination of the Board into account and to give them some weight: Ha v Pharmacy Board of Victoria [2002] VSC 322; (2002) 18 VAR 465.

[3] The observations of Maxwell P in Quinn v Law Institute of Victoria [2007] VSCA 122 (Unreported, Maxwell P, Chernov and Neave JJA, 14 June 2007), although made in relation to the disciplinary of legal practitioners, are apposite.

[4] Statement of Agreed Facts (17 June 2010) [25] and [26]

Civil and Administrative Tribunal Act 1998

Corstens v Racing Victoria Limited

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Corstens v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1106 (25 June 2010)

Corstens v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1106 (25 June 2010)

Parties

Legislation Cited (1)

Cases Cited (1)