1. The decision of the Racing Appeals and Disciplinary Board made on 8 May 2018 is varied with the effect that Mr Smerdon is found guilty of the charge of breaching the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on 78 occasions between 26 June 2010 and 5 November 2016 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable, in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on race day.
2. Mr Smerdon is found guilty of the charge of breaching the Rules of Racing (old Rules of Racing AR 178E/new Rules of Racing AR 249) in that on or about 8 October 2010 he caused to be administered medication to a horse on race day.
3. The decisions of the Racing Appeals and Disciplinary Board made on 10 May 2018 and 25 May 2018 are set aside and in lieu thereof it is ordered that:
   • (a) For the breach of old Rules of Racing 175(a)/new Rules of Racing AR 229(1)(a) Mr Smerdon is disqualified for life and is ordered to pay the respondent a fine of $90,000.
   • (b) For the breach of old Rules of Racing AR 178E/new Rules of Racing AR 249, Mr Smerdon is disqualified for a period of six months, to be served concurrently with the lifetime disqualification referred to above.
   • (c) The lifetime disqualification is to commence from 31 December 2019.
   • (d) The fine is to be paid by 30 June 2020 (subject to any later time as agreed between the parties).
   • (e) Each party is to bear his or its own costs of the proceeding.

1. The decision of the Racing Appeals and Disciplinary Board made on 8 May 2018 is varied with the effect that Mr Webb is found guilty of the charge of breaching the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on or about 28 April 2017 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable, in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on race day.
2. The decisions of the Racing Appeals and Disciplinary Board made on 10 May 2018 and 25 May 2018 are set aside and in lieu thereof it is ordered that:
   • (a) Mr Webb is disqualified for a period of 18 months.
   • (b) The disqualification is to commence from 15 January 2018.
3. Each party is to bear his or its own costs of the proceeding.

1. The decision of the Racing Appeals and Disciplinary Board made on 8 May 2018 is varied with the effect that Mr Vasil is found guilty of the charge of breaching the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on or about 7 July 2012 and 7 June 2013 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable, in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on race day.
2. The decisions of the Racing Appeals and Disciplinary Board made on 10 May 2018 and 25 May 2018 are set aside and in lieu thereof it is ordered that:
   • (a) Mr Vasil is disqualified for a period of 18 months.
   • (b) The disqualification is to commence from 31 December 2019.
3. Each party is to bear his or its own costs of the proceeding.

1. On 13 September 2019 I found that:[1]

Mr Robert Smerdon breached the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a))[2] in that on 78 occasions between 26 June 2010 and 5 November 2016 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable n that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.

Mr Robert Smerdon breached the Rules of Racing of Racing Victoria Ltd (old Rules of Racing AR 178E/new Rules of Racing AR 249)) in that on 8 October 2010 he caused to be administered medication to a horse on race day.

Mr Stuart Webb breached the Rules of Racing of Racing Victoria Ltd (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on 28 April 2017 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.

Mr Tony Vasil breached the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on or about 7 July 2012 and 7 June 2013 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.

1. On 6 December 2019 I heard submissions from the parties as to the appropriate penalty.
2. Whilst there was some brief discussion about whether the old or new Rules of Racing ("the Rules") (AR 196(1)/AR 283(1) respectively) applied, this was ultimately of no real substance. Under both the old and the new Rules, the Tribunal is/was empowered to impose a disqualification, suspension, reprimand or fine. Any disqualification or suspension was further able to be supplemented by a fine. No minimum penalty is/was prescribed for either a breach of old Rule AR 175(a) or new Rule AR 229(1)(a).
3. In respect of the second charge against Mr Smerdon, there is a mandatory minimum penalty of six months disqualification unless special circumstances exist.
4. The considerations I am required to consider when imposing a penalty were not contentious.
5. In Hope v Racing Victoria Ltd (No 3) [2019] VCAT 82, Garde J (sitting as the Tribunal) said at [9]-[10]:
   1. The foundational purpose of the Rules is to regulate the horse racing industry and its integrity, which is 'necessary both to ensure fair and open competition in racing and to maintain the health and well-being of horses and their jockeys'.
   2. The purpose of the Rules and the objectives that the Rules seek to achieve are of fundamental importance to the racing industry. They should always be kept in mind.
6. Further, at [22]:

the Victorian public is entitled to expect that thoroughbred racing is conducted fairly and horses run on their merits uninfluenced by the effects of prohibited substances. All concerned with the racing industry have a duty to ensure that horses run free of deliberately administered prohibited substances.

1. My findings as to the conduct of each applicant strike at the very heart of the integrity of racing. The administration of alkalinising agents and medications on race day in contravention of the Rules undermines the integrity and the perception of the integrity of racing and tarnishes the image of racing.
2. This was particularly so in circumstances where each of the applicants had been licensed for decades and was aware of the importance of the Rules.
3. The conduct was in contravention of the Rules and each applicant knew he was behaving in contravention of the Rules.
4. The wider public is entitled to expect that thoroughbred racing in Victoria will be conducted on a level playing field and that horses will race free of substances which have been deliberately administered to them in contravention of the Rules. When detected, such conduct must be denounced and attract a significant penalty.
5. In order to protect the integrity of the racing industry, any penalty must be sufficient to send a message to all of those involved in the racing industry that such conduct will not be tolerated. It must be sufficient to deter other like-minded individuals from engaging in such conduct. It must convey a message to the wider public that the sport of racing not only does not tolerate but firmly denounces such conduct.
6. I turn then to a consideration of the circumstances and appropriate penalty for each applicant.

1. The scale of Mr Smerdon's conduct was unprecedented. It involved arrangements to "top up" multiple horses on multiple occasions with alkalinising agents/medications.
2. The Racing Appeals and Disciplinary Board ("the RAD Board") imposed a disqualification for life and a fine of $90,000 on the basis of the 115 occasions on which it found Mr Smerdon was involved in the administration of bicarbonate "top ups" to horses on a race day.
3. Mr Gleeson who appeared on behalf of Racing Victoria contended that it was appropriate that I impose the same penalty.
4. Mr McHenry who appeared on behalf of Mr Smerdon urged me to consider a disqualification period in the vicinity of six to eight years. He emphasised that disqualification carries with it meaningful disabilities beyond training, such as precluding Mr Smerdon from attending race tracks. He further implored me not to impose any fine.
5. I agreed with the submissions of Racing Victoria.
6. Mr Smerdon over a number of years was deliberately and actively a party to the administration of alkalinising agents to horses close to racing time. Mr Smerdon exhibited a degree of pride in doing so. He appeared to view his activities as a sport within a sport. He communicated with a range of people in relation to "topping up" horses with a degree of joviality.
7. Mr Smerdon's actions in contravention of the Rules completely undermined the integrity and the perception of the integrity of racing and tarnished the image of racing. His actions struck at the very heart of the integrity of racing.
8. Mr Smerdon knew his actions were in contravention of the Rules. He persisted with his conduct over an extended period. He went out of his way to avoid detection.
9. In imposing an appropriate penalty, I must have regard to the damage caused to the integrity and image of racing by his conduct. Mr Smerdon was well aware of the impact of his conduct. He is a trainer of some four decades standing. He has been one of Victoria's most prominent trainers. He has experience, seniority and prominence in racing.
10. Rather than being a leader in his field, Mr Smerdon abused the industry which had served him so well over many years.
11. Racing is dependent for its ongoing success in there being absolute integrity. Mr Smerdon repeatedly displayed a total disregard for this.
12. The exact impact of Mr Smerdon's conduct will never be known. It will never be known with any certainty whether the proven administrations resulted in horses winning who should not have won or horses losing who should have won. It will never be known whether punters were deprived of winnings and/or other owners, jockeys and trainers of prize money and/or increased stud value. The conduct however raises the very real possibility of these occurrences.
13. There can be no doubt that Mr Smerdon hoped/anticipated that the administration of bicarbonate to horses would lead to their obtaining an unfair advantage.
14. This was not an isolated act of misconduct. I found that Mr Smerdon engaged in the conduct on 78 separate occasions, with the possibility of multiple administrations taking place on one day. I found that he "regularly asked Mr Nelligan to "top up" horses" and was "directly involved in requesting/agreeing to the administration of "top ups"."
15. Because the scale and circumstances of the case are unprecedented, Racing Victoria was unable to identify comparable penalty decisions to assist me in this case.
16. Although the RAD Board found him guilty of "topping up" on more occasions than I did, there comes a time when the number of occasions in which an individual engaged in prohibited conduct is so great in itself that a few more or a few less is of little or no consequence to penalty.
17. I note in this regard that Mrs Nelligan received a lifetime penalty for breaching the rules on (only) 13 occasions.
18. The conduct was extremely serious and Mr Smerdon (together with Mr Nelligan) was the driving force behind the conduct. Mr Smerdon's conduct was deliberate and premeditated across six years on many race days in many locations. He was not a passive or subordinate player.
19. Even when it was likely that his activities had been uncovered, he did not cooperate with the Stewards.
20. I found that Mr Smerdon in his interview with the Stewards frequently gave untruthful/misleading answers and instead denied any knowledge of the "topping up" of race horses.
21. This was not his first offence. Over his 40 year career Mr Smerdon has previously engaged in breaches of old Rule AR 175, albeit not to this magnitude.
22. I agree with the submissions of Racing Victoria that once a certain threshold has been crossed, as it has in Mr Smerdon's case, the misconduct warrants and attracts the maximum available penalty.
23. I disagree that anything less than a life ban would be appropriate.
24. I could find no mitigating circumstances in Mr Smerdon's case. Although I was implored by Mr McHenry to impose a fixed period of disqualification, rather than life, no compelling reasons to do so were placed before me.
25. I was told that the impact of the disqualification (of Mr Smerdon handing in his licence) has been profound and his livelihood lost. Mr McHenry emphasised the personal cost to Mr Smerdon. Mr McHenry emphasised that the impact of disqualification should not be "seen as less arduous because of his contentedness to retire".
26. Mr Smerdon must have anticipated that a significant disqualification period would be the only adequate consequence of his conduct once detected. He must have anticipated it could well be a lifetime disqualification. He has no-one to blame but himself for any personal impact his conduct has delivered back to him.
27. In any event, I do not agree that the disqualification is significant for Mr Smerdon.
28. Mr Smerdon, in a Racenet article published on 29 March 2018, is quoted as saying that it was the right time to retire. He is quoted as saying:

Following the commencement of the current enquiry, I voluntarily stood down from training which I believed was in the best interests of the industry.

The consequence of standing down was that my entire racing infrastructure has been dispersed - training facilities, staff, horses and clients have all been designated to other trainers.

I realise that none of these lost resources could readily be recouped, be it now at some point in the future.

I am 63 and the thought of possibly starting again from scratch seems an unrealistic prospect so the decision has been taken that is time for me to move on.

1. On the same date, Mr Smerdon notified Racing Victoria that he was surrendering his licence.
2. Mr McHenry contended that the passage of time diminishes memory and the racing industry often welcomes back wrongdoers and embraces their return.
3. There are times when the racing industry should not do so.
4. This is such an occasion. Mr Smerdon has shown no remorse or contrition for his conduct. He should not return to racing.
5. I also consider that he should pay a significant fine.
6. Mr McHenry contended that there could be no justification for the imposition of a fine, let alone a significant fine.
7. I disagree.
8. Mr Smerdon handed over his registration enabling him to leave the industry on his own terms.

1. I agree with the observations made by the RAD Board when imposing a $90,000 fine that:

We agree that Mr Smerdon should not be seen as simply retiring and just "walking away", the message that he effectively passed on in a media interview well before the hearing of the Aquanita case had even commenced. Some additional and substantial penalty should be imposed.

1. The Rules clearly permit for the imposition of a fine in addition to cancellation. The imposition of a dual penalty in appropriate cases is clearly open. It is hard to envisage a case where the dual penalty would not be appropriate if not in this case.
2. Mr Smerdon has for many years been the financial beneficiary of the racing industry; the very industry which he has now brought into disrepute.
3. It is completely appropriate that he pay a substantial fine in order to deter others from engaging in like conduct. Whilst a lifetime disqualification is essential to ensure that the integrity of racing is protected, it will have little or no practical impact upon Mr Smerdon. A disqualification, albeit a lifetime one, for someone with no intention of working in the field in future is of little consequence.
4. In all of the circumstances, a substantial fine approaching the maximum available is warranted in order to ensure that Mr Smerdon is meaningfully impacted for his misconduct. The imposition of a fine assists in the maintenance of public confidence in the integrity of racing.
5. A significant fine sends a message to others in the twilight years of their career that there will be a significant practical impact for serious conduct breaching the Rules.
6. I was told by Mr McHenry that Mr Smerdon's financial position is bleak.
7. I was told that he is, at the age of 65, employed as a driver with limited future employment prospects. Although he is jointly registered as proprietor of a property which has, since the time of its acquisition, been occupied by Mr Smerdon's son and former wife as their principal home, I was told that Mr Smerdon was only on the title to provide financial backing. I was told that he has no beneficial interest in property. I was told that Mr Smerdon himself rents a home adjacent to the Caulfield racecourse. Mr McHenry also gave me the following brief overview of Mr Smerdon's position in relation to four companies of which he is a director.
8. I was told that:
   • (a) Stonehedge Farm Pty Ltd has never paid a dividend and will not do so for the foreseeable future and that Mr Smerdon has now resigned as a director and is not otherwise employed by the company. I was however given no information about the value of the land at Drysdale or the identity of the directors or shareholders of the company.
   • (b) Densham Road Pty Ltd was the trustee of a self managed superannuation fund, the current members of which were Mr Smerdon and his partner; monies were not accessible given the statutory nature of the fund and strict guidelines applying to members' use of its assets. No information was however provided about the value of the assets held in that fund.
   • (c) Smerdon Training Pty Ltd was the entity through which Mr Smerdon and Aquanita operated and that given what has happened there is no prospect of a surplus this financial year; a significant deficit was the likely outcome; the company did not trade beyond 15 January 2018 and cannot trade in the future given Mr Smerdon's disqualification.
   • (d) RW Smerdon Pty Ltd, the company through which Mr Smerdon historically traded, is no longer trading and that the 2017/2018 financial outcome is predicted to show a significant loss.
9. Mr McHenry further emphasised the potential financial exposure to Mr Smerdon in the event that his horses are disqualified. I was told that his potential liability amounts to millions of dollars.
10. Racing Victoria was appropriately critical of the submissions made on behalf of Mr Smerdon. I was left with no real understanding of Mr Smerdon's current financial position or the financial position of the entities associated with him. In many respects, having heard Mr McHenry's submissions, I was left with more questions than answers with respect to Mr Smerdon's capacity to pay a fine.
11. The assertion for example that monies in the superannuation fund were not accessible to him is difficult to reconcile with the fact that Mr Smerdon is 64 years old.
12. The assertion that Mr Smerdon was only on the title to provide financial backing for his son's acquisition is similarly difficult to reconcile with his assertion that he is in a weak financial position.
13. Racing Victoria further pointed to differences between the submissions put before the RAD Board about Mr Smerdon's financial position and those put before me. In the submissions before the RAD Board, there was reference made to the balance of an NAB account in Mr Smerdon's name which was not mentioned in the submissions before me. The submissions before the RAD Board made reference to Mr Smerdon leasing a car which was also removed from the submissions before me.
14. The submissions before the RAD Board further stated that Mr Smerdon owns no other assets. This statement was not restated before me. Racing Victoria contended that the removal of this statement from the submissions before me was of potential significance.
15. Mr Gleeson submitted that, in light of Mr Smerdon's long and relatively successful career as one of Victoria's most prominent trainers, I should be wary of accepting that his financial position is weak without concrete evidence.
16. I was wary.
17. I agree with the submissions of Racing Victoria that cogent evidence was required to be put before me fully explaining Mr Smerdon's position if he were to receive the benefit of a reduced penalty based on his personal circumstances.
18. I raised this matter with Mr McHenry.
19. The offer to expand on the evidence was however declined.
20. Ultimately, I was not persuaded by the unsworn and unverifiable assertions put on behalf of Mr Smerdon that a significant fine would place an unfair or excessive burden on Mr Smerdon.
21. I also agree with the submissions of Racing Victoria that Mr Smerdon's reliance upon the prospect of financial exposure to claims arising from any future disqualification is speculative both as to its existence and quantum. In any event, the question of an appropriate fine to be imposed in this proceeding is a distinct and separate one from the unknown prospect of future potential liability in civil proceedings.
22. I note that Racing Victoria maintained its willingness to consider any reasonable proposal by Mr Smerdon for any fine to be paid by way of periodic instalments rather than in a lump sum.
23. I was not satisfied that anything other than a very significant fine would be appropriate in the circumstances of this case. I consider the $90,000 fine, imposed by the RAD Board, which is close to the maximum penalty for the conduct, to be the correct and appropriate one. I will nevertheless allow Mr Smerdon a significant period of time within which to pay the fine, namely six months.
24. I also found Mr Smerdon guilty of breaching old Rule 178E/new Rule AR 249 on one occasion. A breach of new Rule AR 249(1) carries with it a mandatory minimum penalty of six months disqualification unless special circumstances exist which would justify the reduction of this mandatory minimum penalty.
25. It is appropriate in relation to this breach that Mr Smerdon be disqualified for a period of six months, to be served concurrently with the lifetime disqualification referred to above.

1. There were three particulars of charge alleged against Mr Webb. It was only the third of those which I found proven. I found that Mr Webb was a party to the administration of a "top up" administered by Mr Nelligan to the horse Under Oath.
2. The RAD Board imposed a disqualification of four years on the basis of finding three particulars of charge proven.
3. Racing Victoria contended that the appropriate penalty in relation to Mr Webb remained disqualification for a minimum period of four years.
4. Mr Webb contended that a disqualification in the vicinity of 12 to 18 months was the appropriate determination.
5. Racing Victoria implored me to consider contextually, instances where I did not find conduct on a particular alleged occasion proven and conduct which was not particularised against Mr Webb.
6. There is no doubt that references to Mr Webb were peppered through the materials before me. Some of that conduct formed the foundation for the two particulars I ultimately found not proven. Other conduct was not the subject of any allegation but was referred to in the submissions of Racing Victoria as "relevant surrounding circumstances".
7. I agree with the submissions made on behalf of Mr Webb that the proven breach of the Rules is the sole conduct for which Mr Webb should/can be penalised.
8. Mr Collins did not at any stage submit that Mr Webb's proven conduct was isolated and/or uncharacteristic. Had he done so, I may of course have had my attention quickly drawn to the broader materials to refute such claims.
9. Racing Victoria further contended that in imposing a penalty, I should take into account Mr Webb's lack of cooperation with the Stewards and his consistent denials of wrongdoing. Mr Collins did not disagree with this proposition.
10. Racing Victoria also drew my attention to Mr Webb having previously committed numerous breaches of the Rules. Many of those breaches involved relatively minor misdemeanours. However, on two occasions in 2002 and 2004, Mr Webb was found guilty of breaching old Rule AR 178. Whilst Mr Collins acknowledged these previous breaches, he submitted that these breaches should not attract significant weight given the most recent was in 2004. I agree with that submission but note nevertheless that Mr Webb conversely does not receive the benefit of having never breached the rules.
11. It was submitted by Mr Collins on behalf of Mr Webb that I should impose an appropriate penalty.
12. I was taken by Mr Collins to administration cases (breaches of old Rules AR 178AA and 178E/new Rules AR 247 and AR 248) which he submitted were comparable in their nature to Mr Webb's conduct.
13. The penalty for a breach of those Rules is a penalty of disqualification for a period of not less than six months unless special circumstances exist whereupon the penalty may be reduced.
14. Sensibly, Mr Collins did not submit that such special circumstances did exist in Mr Webb's case.
15. Instead, he submitted that it would be appropriate to impose a penalty in the vicinity of three times the administration mandatory penalty; somewhere between 12 to 18 months disqualification, taking into account the aggravating features of this case.
16. I was referred to a number of cases by Mr Webb where such penalties had been imposed for administration.[3] I was not greatly assisted by reference to those particular cases.
17. Mr Webb was not charged under the administration rules, and the penalty is at large under old Rule AR 175/new Rule AR 249. It was difficult to decipher from the brief reasons in the cases to which I was referred whether or not they were factually comparable.
18. I was similarly not assisted by Racing Victoria referring me to cases involving old Rule AR 175(aa) which had a prescribed minimum penalty of five years disqualification.
19. In reaching an appropriate penalty, I recognise that Mr Webb's conduct was intentional, deliberate and premeditated. It did not involve any mistake. He does not now deny that he knew his conduct was in breach of the Rules. He does not get the benefit that is sometimes given for cooperation. Mr Webb did not assist the Stewards in their enquiries. He accepts that he gave implausible answers in his record of interview.
20. I consider that 18 months is an appropriate determination having regard to the seriousness of Mr Webb's conduct.
21. Mr Webb was disqualified by the RAD Board for a period of four years on the basis of three occasions of administration. His disqualification period commenced on 15 January 2018.
22. I consider that a disqualification period of 18 months is appropriate, taking into account that ultimately, I found only one occasion on which the allegation was proven.

1. There were seven particulars of charge alleged against Mr Vasil. I found only two proven. The RAD Board imposed a disqualification of three years disqualification on the basis of finding seven particulars proven.
2. Racing Victoria contended that the appropriate penalty to be imposed on Mr Vasil remained disqualification for a minimum period of three years.
3. The essence of the submissions made on behalf of Mr Vasil was that he should receive a fine[4] rather than any period of disqualification.
4. Once again, Racing Victoria implored me to consider contextually, instances where I did not find a particular proven and conduct which was not particularised against Mr Vasil.
5. Once again, for the reasons I gave in relation to Mr Webb, I consider it appropriate to penalise Mr Vasil on the basis of the proven conduct.
6. Mr Wheelahan on behalf of Mr Vasil in his submissions emphasised that the conduct took place some years ago. He contended that I should have regard to comparable penalty decisions around the period 7 July 2012 to 7 June 2013 in determining the appropriate penalty to be imposed in Mr Vasil's case.
7. He referred me to a number of decisions involving the administration of bicarbonate over the period 12 months before and 12 months after the dates of the conduct for which Mr Vasil was found guilty.
8. Each of the cases he referred me to had disqualification periods of nine months or less.
9. They were however once again not directly comparable to this case, involving either single administrations and/or individuals who had pleaded guilty and/or had no prior history.[5]
10. They were all distinguishable from the position of Mr Vasil.
11. In any event, Mr Wheelahan proposed in his submissions a penalty less than the penalty imposed in the cases to which he referred me. He submitted that a fine was the appropriate disposition.
12. Mr Wheelahan emphasised that Mr Vasil has not been charged and found guilty of a breach of the Rules of Racing for some years and that a fair review of his record over a lifetime career does not "evidence a serial reoffender".
13. I agree with the submissions of Racing Victoria that general deterrence is of great importance in this matter. The passage of time is frequently a matter the Tribunal will take into account in determining whether a proposed penalty is appropriate or not. This is often because, in the interim, an individual has expressed remorse and shame for his conduct or there are other mitigating factors which have arisen.
14. In Mr Vasil's case, he has not shown remorse or insight. He continued in his evidence before me to deny any wrongdoing in the face of evidence to the contrary. Mr Vasil arguably prolonged the proceedings by giving false and misleading statements to the Stewards.
15. I found that he was a party to the administration of alkalinising agents on two separate occasions separated in time by one year. The conduct was not one-off in its nature.
16. Mr Vasil has received fines and suspensions in the past for breaches of both old Rules AR 177 and AR 178. This was not a first-time offence.
17. Any penalty imposed must specifically deter Mr Vasil from conducting himself in a like matter in the future and deter others from such conduct.
18. I was referred to an affidavit sworn by Mr Tony Hannebery, solicitor. In his affidavit, Mr Hannebery suggested, given the delay there would be no prejudice to the image of racing by virtue of Mr Vasil being permitted to continue to train.
19. I disagree entirely.
20. The proceedings in this matter have from their inception received a great deal of attention. Interest in these matters has not diminished because of the passage of time. Other individuals involved in the racing industry are well aware of this matter. The need to deter others remains as high now as it was six years ago.
21. Mr Hannebery also said that he has been told by Mr Vasil that he has no intention of again breaching the Rules of Racing. I would most certainly hope that he does not have such an intention.
22. Nevertheless, even if Mr Vasil has so told Mr Hannebery, his words carry little weight. Mr Vasil has had findings against him for previous administration offences. He presumably would not have informed the authorities after each of those instances that it was his intention to reoffend.
23. Mr Vasil's offending cannot be viewed as random or one-off.
24. I also disagree that I should place any particular weight on concerns raised in Mr Hannebery's affidavit in relation to the introduction of the License and Registration Suitability Policy ("the Policy"), dated 24 April 2019.[6] It was contended that the Policy "infects the penalties imposed by the Tribunal with greater general deterrence beyond the mere actual penalty imposed". Mr Hannebery said in his affidavit at [11]:
    1. The Suitability Policy was recently applied by Racing Victoria to Mr Mark Riley at the end of his disqualification period for administration of an alkalinizing agent. Mr Riley instructs me that he applied for his training licence after the expiration of his disqualification period but that it was refused for reasons citing the Suitability Policy. The refusal to grant Mr Riley a license was by letter dated 23 September 2019.
25. I agree with Racing Victoria that an applicant's prior disciplinary record has always been of potential relevance in licensing decisions. LR 35B of the old Rules provided that, in order to be granted a trainers license, a person must meet the "requirements set out in the Racing Victoria Trainer Licensing Policy, ("the Policy") referred to in LR 35A(3). The Policy contained general requirements that the applicant be of good character and reputation and be a fit and proper person (clause 3(e)). The Policy further required Racing Victoria to take into account a Racing Disciplinary History Assessment which included an assessment of an individual's history of compliance with the Rules and/or any penalties received by an individual for breaches of the Rules.
26. I am however very mindful of the fact that of the seven particulars alleged against Mr Vasil, he ultimately successfully defended five.
27. I was referred to a report prepared by Mr Joblin, forensic psychologist, dated 13 November 2019 in relation to specific deterrence. I do not propose to go into the highly personal detail of that report save and except to say that I accept that there have been a number of tragic occurrences in Mr Vasil's personal life in recent years that have had a very significant impact on him and his health. I accept that Mr Vasil has had a strong involvement in horses throughout his upbringing and life. I accept the observations of Mr Joblin that there is a basis to accept that the removal of his interaction with horses would concerningly and inappropriately test his psychological state.
28. I nevertheless consider that a disqualification period is the only appropriate disposition in this matter. Even though because of his personal circumstances, the hardship may be significant, it is his own conduct which has led to this consequence. Both specific and general deterrence are of paramount importance in the context of this matter.
29. I do not consider it appropriate to suspend any period of disqualification.
30. I am however mindful of the impact of a suspension on Mr Vasil.
31. Taking into account the issues personal to Mr Vasil, I have determined that the outcome should be akin to that imposed on Mr Webb and I will impose a period of 18 months disqualification. It is not a crushing penalty. He will be able to reapply to be registered in the foreseeable future.

[1] Smerdon v Racing Victoria Ltd [2019] VCAT 1394.

[2] The old rules were in effect prior to 1 March 2019. The new rules came into effect on 1 March 2019. AR 229(1)(a) of the new rules provides that a person must not engage in any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing. AR 175(a) of the old rules provided that the Stewards may penalise any person who, in their opinion, has been guilty of any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing.

[3] Maund v Racing Victoria Limited [2015] VCAT 1303 and Racing Victoria Stewards v Shea Eden & Jamie Dentith (Racing Appeals and Disciplinary Board - penalty decision 14 March 2019).

[4] Mr Wheelahan withdrew a further submission that special conditions could be imposed upon his licence restricting the number of horses to be trained.

[5] Busuttin's case - this involved a single administration performed by the horses vet. Preusker's case - Mr Preusker pleaded guilty. He had no prior convictions. This related to a single administration. Bourke's case - this related to a single administration and Mr Burke had no previous administration offences. McLean's case - once again, this related to a single administration. Mr McLean pleaded guilty. Cooper's case - once again, this related to a single administration. There does not appear to have been any prior administration offences. Marshman's case - once again, this related to a single administration and Ms Marshman pleaded guilty. Chibnail's case - this involved a single administration and the record does not suggest any prior administration offences. Homann's case - this involved a single administration. He had no prior convictions or warnings.

[6] Racing Victoria contended that the Suitability Policy actually came into effect on 1 March 2018 and that the 24 April 2019 version involved only a minor update to the details of the relevant Racing Victoria department. This was of course a day prior to the hearings in this matter.