On 5 December 2017, the Victorian Civil and Administrative Tribunal (VCAT) considered submissions regarding penalty following their decision on 1 November 2017 in relation to an application for review by licensed trainer Luke Kilduff against the 4 August 2016 decision of the Harness Racing Victoria (HRV) Racing Appeals and Disciplinary (RAD) Board.
Background
On 3 and 4 August 2016, the HRV RAD Board heard a matter involving Luke Kilduff, who was charged under Australian Harness Racing Rules (AHRR) 190(1), 190A(1)(a) and 190AA(1) and (2). Mr Kilduff pleaded guilty to the charge issued under AHRR 190(1) and after being found guilty of the remaining charges was disqualified by the HRV RAD Board for a period of 18 months. Details of the HRV RAD Board hearing of 3 and 4 August 2016 can be viewed here.
On 9 and 10 March 2017, the VCAT heard Mr Kilduff’s application for review of the decision of the HRV RAD Board of 4 August 2016 in finding him guilty of the ‘administration’ offence (AHRR 190AA(1) and (2)). Mr Kilduff did not challenge the six month disqualification for the 'presentation' offences.
The details of the VCAT Review Hearing and decision can be found here.
Penalty Hearing
On 5 December 2017, VCAT Senior Member Gerard Butcher heard submissions on penalty from Barrister David Hallowes SC representing Luke Kilduff, including Mr Kilduff’s personal circumstances and history of good character. Mr Hallowes put forward a plea for leniency and submitted that a period of suspension may be appropriate in lieu of a period of disqualification. This submission was withdrawn when it was pointed out that Mr Kilduff was already disqualified for six months on the ‘presentation’ charges. Mr Hallowes then sought a 6 month disqualification fully concurrent with the six month disqualification already imposed for the presentation offences.
HRV, who was represented by Barrister Adrian Anderson, submitted that the administration of an anabolic steroid was at the high end of offending and must be viewed and treated differently to presenting a horse for a race whilst not free of prohibited substances. Mr Anderson made reference to a number of cases which supported his submission and highlighted the importance of a meaningful deterrent for administration of prohibited substances such as testosterone. Mr Anderson submitted that the penalty for the administration should be two years (the higher end of the penalty sought before the RADB board) and submitted that a total penalty of three years disqualification would be appropriate by making the two six-month disqualification periods cumulative.
Mr Anderson relied upon Judge Nixon’s judgment in the 2012 Mifsud VCAT review and the related case of Quinlan in highlighting the importance of general deterrence for an administration offence such as this. Senior Member Butcher endorsed these submissions and referred to Mifsud and the importance of protecting the integrity of the industry at length during his findings on penalty.
Senior Member Butcher provided a lengthy deliberation with respect to Mr Kilduff’s history in the harness racing industry, his personal circumstances, and his good character. Mr Butcher was very clear in sending a message to the racing industry that the administration of prohibited substances struck at the integrity of the industry and undermined the principles of a level playing field as well as diminishing the faith of the wagering public.
In arriving at a penalty, Senior Member Butcher set aside the decision of the HRV RAD Board on charge 3, to disqualify Mr Kilduff for a period of 18 months and increased the penalty to a period of two years disqualification which was to commence immediately - less the short period of disqualification prior to the stay of the penalty commencing on 1 September 2016.
The VCAT written decision can be viewed here.
