Decision of the H.R.V. Racing and Appeals Board affirmed.

1. On 31 July 2009 HRV stewards conducted a stable inspection at 445 Lancefield Road, Kilmore. Mr Walters trained harness racing horses at that address.
2. During this inspection a used 20ml bottle of aminocaproic acid was found in a rubbish bin. Mr Walters admitted that he owned the bottle and that he had used the contents of the bottle on his horses. The stewards seized the bottle.
3. The bottle of aminocaproic acid in question was not supported by a prescription.
4. Mr Walters was charged with breaching rule 194 of the Australian Rules of Harness Racing. Rule 194 states:

"A person who holds or controls drugs unlawfully or which are unlabelled or without a current supporting prescription for a horse presently in the trainers care is, if those drugs are capable of being administered to a horse, guilty of an offence."

"In July 2009 you have held and controlled a bottle of Schedule 4 poison, aminocaproic acid, which is capable of being administered to a horse, unlawfully and without a supporting prescription."

1. Aminocaproic acid is categorised as a Schedule 4 (S4) drug and the Drugs, Poisons and Controlled Substances Act 1981 (Vic) provides that no person shall have in their possession an S4 poison unless authorised or licensed to do so. Aminocaproic acid has never been registered for use in Australia under the Australian Pesticides and Veterinary Medicines Authority. Mr Walters was not authorised or licensed to possess aminocaproic acid.
2. This charge was heard by the H.R.V. Racing and Disciplinary Board ("The Board") on 25 February 2011. Mr Walters pleaded guilty to the charge. The Board convicted Mr Walters and imposed a fine of $2000.
3. On 9 March 2011 Mr Walters filed an application to review the Board's decision. Mr Walters claimed that the penalty imposed by the Board was too severe.

1. 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 an application to review.
2. Mr Walters is a person whose interests are affected by the decision subject to review. The application was made within the period prescribed by the Act.
3. 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.
4. The proceedings before me are only concerned with the question of penalty given Mr Walters' plea of guilty to breaching Rule 194 before the Board. Mr Walters was represented by Mr Hammond, a solicitor, in the proceeding before the Board. However, Mr Walters is representing himself in the review.

1. As the Tribunal stated in Corstens v Racing Victoria Limited (Occupational and Business Regulation List) [2010] VCAT 1106, 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.
2. In determining an appropriate penalty it is necessary to balance just punishment, deterrence ie. both specific and general deterrence, denunciation, the preservation of the integrity of racing as well as the offenders prospects so far as rehabilitation is concerned.
3. Before the Board Mr Rogers for the stewards submitted that the appropriate penalty was a $2000 fine. Mr Rogers referred to the matter of Mr Laming who had pleaded guilty to a similar charge which involved the possession of a 20ml bottle of aminocaproic acid found at his stable premises. Mr Laming pleaded guilty to possession of the aminocaproic acid and the Racing Appeals and Disciplinary Board imposes a $2000 fine. Mr Hammond, for Mr Walters, submitted that while the Tribunal would record a finding of guilt against Mr Walters it should not impose any penalty.
4. Mr Hammond advanced a number of submissions on Mr Walters' behalf and these included the following:
   1. Mr Walters did not have any relevant prior convictions.
   2. The passage of time which elapsed between the date the offence was committed and the date on which the penalty was imposed. In other words there was extensive delay.
   3. Mr Walters had held a licence for some 12 years.
   4. No warning had been given by any harness racing authority in Australia that aminocaproic acid was a prohibited substance until August 2009 ie. after Mr Walters committed this offence.
   5. Reference was made to the case of McDonough which was an appeal heard by the former Racing Appeals Tribunal. In that case a conviction was recorded without the imposition of any penalty.
   6. Mr Hammond posed the question "What more could Mr Walters have done to prevent being in breach of the rules as he obtained the product from a veterinarian?"
   7. Mr Walters had pleaded guilty at the earliest possible opportunity.
5. Mr Rogers submitted that the penalty of a $2000 fine imposed by the Thoroughbred Racing and Disciplinary Board on Mr Laming was the appropriate penalty given that the respective offences were similar offences and it was desirable that there be consistency in the imposition of penalties. Mr Rogers submitted that Rule 194 was an important rule which required trainers to act responsibly and lawfully so far as the administration of drugs was concerned.
6. At the review hearing Mr Walters, who represented himself, gave evidence on oath. I found Mr Walters to be an honest witness who unfortunately had mistakenly relied on the fact that he had obtained the aminocaproic acid from a leading veterinarian in Western Australia. Mr Walters, not surprisingly, was critical of Dr Rose, the veterinarian in question, for supplying the aminocaproic acid to him in the circumstances. When Mr Walters was asked why he didn't check with his own veterinarian, he replied that she has a different method of treatment for bleeding in the tendon of his horse.
7. In my judgment the decision in McDonough can be distinguished as the Racing Appeals Tribunal found that the hormone in the swab had most likely been given to the horse before that horse came into Mr McDonough's possession.
8. A breach of Rule 194 is in my judgment a serious matter given the purpose behind the rule. I regard general deterrence and denunciation as very relevant considerations so far as an appropriate penalty is concerned. The message should be heard loudly and clearly by harness racing trainers that a prescription must be obtained before drugs are provided. Mr Walters did not have a prescription for aminocaproic acid and indeed he wouldn't have been able to obtain a prescription in Victoria as the drug is not legal in this state. It was and remains an S4 drug. Dr Rose should not have provided it but that does not excuse Mr Walters.
9. I have considered all matters advanced by Mr Hammond on Mr Walters' behalf before the Board as well as considering Mr Walters' evidence and submissions today. I have also considered the submissions advanced by Mr Rogers. I regard the breach of Rule 194 as a serious offence although to some extent I can sympathise with Mr Walters' feelings so ar as Dr Rose is concerned. Dr Rose should not have supplied the aminocaproic acid but Mr Walters failed to take any step in Victoria to check that he could possess aminocaproic acid. Having considered all the material, including the material provided today and the evidence I find that the penalty ordered by the Board was appropriate and therefore affirm the Board's decision.