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Non Raceday Inquiry RIU v D Schofield - Reserved Decision dated 29 April 2018 - Chair, Prof G Hall

Created on 30 April 2018

BEFORE A JUDICIAL COMMITTEE

OF THE JCA

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND Denis Schofield Licensed Public Trainer

Respondent

Information: A8704

Judicial Committee: Prof G Hall, Chairman

Mr G Jones, Committee Member

Present: Mr A Cruickshank, Racing Investigator, for the Informant

The respondent in person

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] Mr Schofield is charged that “on 29 December 2017, he was the licensed trainer of the Greyhound ZIPPING ANDRE, which was presented for and raced in Race 2 the Mike Stent Decorators Stakes at a race meeting conducted by the Waikato Greyhound Racing Club at Cambridge, when the said Greyhound was found to have had administered to it a Category 2 Prohibited Substance, namely Methamphetamine and Amphetamine, being an offence under the provisions of rr 61.1 and 61.3 and punishable pursuant to rr 63.1 and 61.4 of the New Zealand Greyhound Racing Association Rules.”

[2] Rule 61.1 states: “The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in an Race, shall produce the Greyhound for the Race free of any Prohibited Substance.”

[3] Rule 61.3 states: “Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.”

[4] The rule as to penalty is r 63.1 which provides: “Any Person found guilty of an Offence under these Rules shall be liable to:

(a) a fine not exceeding $10,000 for any one (1) Offence except a luring/baiting Offence under r 86; and/or

(b) Suspension; and/or

(c) Disqualification; and/or

(d) Warning Off.”

[5] Rule 61.4 provides: “Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”

[6] A letter from Mr Godber, the General Manager of the RIU, dated 13 March 2018 authorises Mr Cruickshank pursuant to r 66.2(a) to lay the charge alleging a breach of rr 61.1 and 61.3.

[7] A teleconference was held on 6 April 2018 at which the respondent confirmed that he admitted the breach of rr 61.1 and 61.3. He confirmed this fact in his written submissions as to penalty.

[8] We note that the information refers to “the said Greyhound was found to have had administered to it a Category 2 Prohibited Substance, namely Methamphetamine and Amphetamine”.

[9] While we accept the respondent’s admission of the breach and thus find the breach proved, we identify two matters with respect to the wording of the information that have required clarification.

[10] First, the charge should have referred to methylamphetamine and not methamphetamine, as methylamphetamine is the expression that is used in para (v) of the Fifth Schedule (permanently banned prohibited substances). We understand that methylamphetamine is a synonym for methamphetamine and thus we are satisfied that the respondent has not been misled by this misdescription and there has been no miscarriage of justice, as a consequence.

[11] Secondly, the respondent is not charged under r 61.2, which refers to administration. The information should not have referred to the dog being “found to have had administered to it a Category 2 Prohibited Substance”, but rather that it was produced (or brought onto the racecourse) with the prohibited substance (rr 61.1 and 61.3). Mr Schofield has admitted the charge on the basis he was negligent in presenting (which is the usual expression) ZIPPING ANDRE whilst it had a prohibited substance in its system. This, as was charged, is a breach of rr 61.1 and 61.3. Again, we do not believe the wording of the information has misled Mr Schofield. Indeed, his penalty submission clearly supports this conclusion.

Summary of facts

[12] The respondent, Mr Denis Schofield is a licensed Public Trainer under the Rules of the New Zealand Greyhound Association. He has been involved in the industry for approximately 15 years. He is 77 years of age.

[13] On 29 December 2017 ZIPPING ANDRE was correctly entered and presented to race by Mr Schofield in Race 2 at the Waikato Greyhound Racing Club meeting at Cambridge.

[14] ZIPPING ANDRE finished first of the eight Greyhounds and won a stake of $1,322. The dog underwent a random post race swab. Mr Schofield did not contest the swabbing process.

[15] All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the NZGRA.

[16] On 24 January 2018 the Official Racing Analyst reported in writing that the sample from ZIPPING ANDRE had tested positive to methamphetamine and amphetamine.

[17] Methamphetamine is classified as a Class A controlled substance under the Misuse of Drugs Act 1975. Methamphetamine is one of a family of drugs called amphetamines, which act as central nervous system stimulants. They speed up the messages to and from the brain – earning them the street name ‘speed’.

[18] Methamphetamine and amphetamine (which is a metabolite of methamphetamine) are prohibited substances within the meaning of the Rules and their presence in a raceday sample is, prima facie, a breach of the Rules.

[19] Inquiries were carried out at Mr Schofield’s training establishment in Rangariri and at his home address in Auckland on 31 January 2018.

[20] Mr Schofield’s son, Mr David Schofield, who had his Handler’s Licence revoked by GRNZ in 2016, manages the training establishment with his partner, Ms Archer and her son, Mr Hodgson. All three reside in a dwelling on the property.

[21] Mr Schofield senior has very limited day-to-day involvement or physical contact with the greyhounds as he resides approximately 100 kilometres away.

[22] While Mr Schofield senior is the registered trainer, Mr Schofield junior is the person who actually trains and works the greyhounds. Mr Schofield senior’s involvement is prima facie limited to picking up the greyhounds on race-day, transporting them to the races and returning them to the custody of Mr Schofield junior.

[23] When spoken to, Mr Schofield junior gave his occupation as a Professional Greyhound Trainer. He made a number of comments about the greyhounds being nobbled either in the carpark of the Waikato Greyhound Racing Club or once they had been kennelled by a person or persons that did not get on with Mr Schofield senior. Mr Schofield junior had a positive to amphetamine in 2011.

[24] When spoken to, Mr Schofield senior was surprised to learn of the positive test and was not able to provide any explanation. He did however ask Investigators several times whether Mr Schofield junior was on methamphetamine. He then stated “I thought he was past all that. It was years ago when he used to be on all that with that bloody [we suppress this person’s name as it is not germane to this charge]”.

[25] As a result of this information, and in order to exclude Mr Schofield junior, Ms Archer and Mr Hodgson as a potential cause of the methamphetamine positive, Investigators went to the Rangariri training establishment on 16 February 2018 and asked them in writing whether they would consent to providing a hair sample for drug testing analysis. Mr Hodgson was not present but the relevant written request was left with Ms Archer.

[26] Ms Archer sought time to take advice and consider the request. She phoned Investigators on 19 February and advised that they did not consent to providing a hair sample. As a result, Mr Schofield junior, Ms Archer and Mr Hodgson were not able to be excluded as causing or contributing to the positive test.

[27] There was no evidence or suggestion that either Mr Schofield senior or his wife use or have used methamphetamine. Thus no hair sample request was made of them.

[28] Mr Schofield elected to have the B Sample tested by New Zealand Racing Laboratory Services (NZRLS). On 22 February 2018 the Official Racing Analyst from NZRLS confirmed in writing that the B Sample from ZIPPING ANDRE had tested positive to methamphetamine and amphetamine.

[29] Mr Schofield senior has been involved in the greyhound industry for about 15 years and is the registered trainer of a number of greyhounds. He has had no previous breaches of the prohibited substance rule.

Informant’s penalty submissions

[30] The RIU summarised the four principles of sentencing as:

• Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.

• The need to rehabilitate the offender should be taken into account.

[31] The first three principles were viewed as being relevant in this case.

[32] Aggravating factors were said to be that methamphetamine is a Class A controlled drug and amphetamine a Class B controlled drug under the Misuse of Drugs Act 1975 and methamphetamine is “a scourge on society and has no place in the racing industry. It poses a significant animal welfare issue to the Greyhound involved.”

[33] Mr Cruickshank said that Mr Schofield’s staff were not fully co-operative with Investigators when they first went to the training premises. Mr Hodgson misled Investigators by stating that Mr Schofield junior was not home when the Investigators knocked on the door. Mr Schofield junior was inside the house.

[34] Mr Schofield acknowledged that Mr Schofield junior had used methamphetamine in the past and he was immediately suspicious that he might be using it again.

[35] Despite Mr Schofield junior having had his licence revoked by GRNZ on 15 December 2016, the respondent had permitted him to manage and train his greyhounds. Mr Schofield senior was thus “in effect an absentee trainer”. He did not attend the kennels. His involvement was limited to picking the dogs up and taking them to the races. He relied entirely on his staff and Mr Schofield junior was in many ways the ‘de facto’ trainer.

[36] Mr Schofield junior had a previous positive to amphetamine with his greyhound HAVE A YAP in 2011.

[37] All three occupants at Mr Schofield’s training premises (Mr Schofield junior, Ms Archer (Licensed Handler) and Mr Hodgson (Licensed Handler)) refused to consent to providing a hair sample for drug testing analysis. Therefore, none of them could be excluded as a cause of the positive test.

[38] Mitigating factors were that Mr Schofield had accepted responsibility for the positive and had been fully co-operative with the RIU throughout the investigation. He had admitted his guilt and liability at the first available opportunity.

[39] Mr Schofield had had no previous prohibited substance breaches over approximately 15 years.

[40] On 1 September 2014 the Board of GRNZ gave approval to penalty standards and categorised various prohibited substances. Methamphetamine and amphetamine are categorised as a Category 2 prohibited substances. The penalties allow for a starting point of five years’ disqualification.

[41] The RIU stated that these penalty guidelines had been “well publicised within the greyhound racing community. They are intended to encourage more responsibility, diligence and compliance with the Rules by trainers and those in charge of greyhounds at race meetings.”

[42] The RIU stated that this was the first methamphetamine and amphetamine matter to be heard under these penalty guidelines.

[43] The RIU sought a penalty of three years’ disqualification.

[44] There were limited previous decisions regarding methamphetamine and amphetamine positives across the three codes in New Zealand, however there had been cases in Australia, which might provide some assistance.

[45] In RIU v Newton 2 October 2014 a thoroughbred horse had tested positive to methamphetamine. The trainer admitted previously using methamphetamine. The penalty imposed was a disqualification of three years, costs to the RIU and JCA, and the horse was disqualified.

[46] With respect to greyhound racing, in Greyhound Racing NSW v Webb 12 February 2018 three greyhounds tested positive to methamphetamine and amphetamine when tested out of competition. The charges were defended. The penalty imposed was a disqualification of two years eight months.

[47] In Greyhound Racing Victoria v Hunt 29 April 2015 a dog tested positive to methamphetamine and amphetamine. The charged was defended. The penalty imposed was a disqualification of 18 months and the dog was disqualified.

[48] In New Zealand, prior to the categories being listed, in RIU v Schofield 12 December 2011 a greyhound tested positive to amphetamine, the cause of which was not confirmed. The penalty imposed was a fine of $3,000, plus JCA costs, and the greyhound was disqualified.

[49] Under r 61.4 ZIPPING ANDRE is required to be disqualified. ZIPPING ANDRE won the race and received a stake of $1322. Repayment of the winning stake is required.

[50] The RIU sought an order for the costs of the ‘B’ sample being tested, which was $1,035. The RIU did not seek any other costs.

Respondent’s penalty submissions

[51] Mr Schofield said he has been a licensed person since 1995. He is 77 years of age and has never been suspended or disqualified. He owns his own home in Devonport and a farm in the north Waikato region. Prior to training greyhounds, Mr Schofield had been employed for 25 years by a major New Zealand company, as a Human Resources Manager.

[52] Mr Schofield said his honesty and integrity was beyond reproach. He had sat as a member of a Judicial Committee on behalf of the NZGRA. He said he was “shocked and devastated to receive the news of the positive swab”.

[53] Mr Schofield commented that his reaction to the news of the positive to the effect, “He is not on P is he?” had been taken out of context. With respect to this, he said he and his wife had since had in depth interviews with his son, David, and his partner, Ms Archer, and her son, Jacob Hodgson, and they denied any knowledge of methamphetamine/amphetamine being or having been on the property. They also said they had not been prescribed medication that might contain the substance, nor had they used it recreationally.

[54] Mr Schofield accepted that the substance detected was not endogenous, so therefore it must have been administered, ingested or arose through contamination, directly or indirectly, to ZIPPING ANDRE prior to racing. He admitted negligence in failing to present that dog for racing in a drug free state.

[55] Mr Schofield concluded his submission by emphasising that the informant had not contended that he was responsible for the actual substance being in the greyhound’s system at the time that it raced but rather that he was the trainer and the person for the time being in charge of ZIPPING ANDRE when the dog was presented to race.

[56] Mr Schofield said any loss of public training privileges would be devastating on his family financially and would create substantial stress and hardship, as he was approaching 78 years of age and the 35 greyhounds he owned were his only income.

[57] Mr Schofield commented that he was “shattered by this positive swab” and could not understand how it had occurred. He believed the family had lost their good name in the industry. He asked this Judicial Committee to look favourably at a penalty of a fine of $2,000 in this case.

Decision as to penalty

[58] The document titled “Categories of Prohibited Substances” is a policy document issued by the Board of GRNZ to complement the Rules. It provides a starting point of five years’ disqualification for a Category 2 breach, which encompasses, “all permanently banned substances as listed in the fifth schedule”. Amphetamine and methylamphetamine (not methamphetamine, as noted earlier in this decision at [10]) fall within this Schedule.

[59] A category 2 breach is the second highest category. The highest category has a 10-year disqualification starting point, whilst category 3 is a one-year disqualification and/ or a $6000 fine, category 4 is six months’ disqualification and/ or a $5000 fine, and category 5 is three months’ disqualification and/ or a $4000 fine.

[60] Rule 61.1 is a presentation breach; r 61.2 is an administration breach. The general penalty provision, r 63.1, does not distinguish between these two rules and indeed is a general penalty provision that applies to all breaches of the Rules other than minor infringements or a luring/baiting offence under r 86. The nature of the breach is clearly relevant to its seriousness and to the respondent’s culpability.

[61] In determining the appropriate penalty, we have regard to the fact that a raceday producing (presenting) breach involving a category 2 substance impacts on the integrity of the race, and, in addition, the presence of a permanently banned prohibited substance raises concerns as to animal welfare. We emphasise also the need to maintain the integrity of greyhound racing and to ensure a level playing field for all participants.

[62] We take guidance from the GRNZ policy document. We believe we must factor in the nature of the breach and adjust our starting point. A starting point is just that. A Judicial Committee is able to go up or down from the specified figure depending on the circumstances of the particular case. Significantly, in our view, the five-year starting point for a Category 2 breach (indeed, the starting points for any of the categories of breaches) does not distinguish between presentation and administration breaches. The reason for this is not clear. It may be that it was thought appropriate to give a Judicial Committee sufficient discretion to deal with a case on a fact specific basis. It is clear, however, that the Board’s intention was that more severe penalties be imposed for breaches involving prohibited substances than had been the case before the document was produced.

[63] Historically, the codes have viewed breaches involving administration more seriously. This is because an administration breach demonstrates deliberateness/ intention, whereas presentation may be evidence only of negligence. Mr Schofield has emphasised in his submission that he has been charged with and has admitted a presentation breach.

[64] We believe a four-year starting point is appropriate for a presenting (producing) breach.

[65] We have regard to the cases that the informant identified in their submissions. The two Australian greyhound methamphetamine cases are not that helpful in that in one the starting point was not disclosed and the other was not a presentation case. The penalty in Hunt was 18 months’ disqualification. This was a first breach but there was no admission of the breach. There were multiple charges in Webb, a not guilty plea, and the penalty was two years eight months’ disqualification. The starting point was 156 weeks. This was not a presentation breach. The positive was the result of an out of competition test and thus the integrity of a race was not in question in this case.

[66] Newton, in the thoroughbred code in this country, is a defended case of presenting a horse, which was found to have had methamphetamine present in its metabolism. The starting point was three years’ disqualification where the respondent admitted to using methamphetamine and, with no personal mitigating factors being identified, this was the penalty imposed. This was a first breach. This is an obvious mitigating factor and we can only assume that this had been factored into the starting point that was adopted.

[67] When regard is had to the particular circumstances of the respondent’s breach, there is no evidence before us as to the source of the drugs. This is not that unusual where the case is one of presentation to race. We note that the respondent’s son, his partner and her son have each refused to provide a hair sample when requested to so do by RIU Investigators, as, of course, is their right. However, as the RIU note, this has the consequence that we cannot eliminate them as being a possible source of the positive result.

[68] Mr Schofield’s comment questioning whether his son was using methamphetamine is understandable when it is considered that Mr Schofield junior had previously been found to be in breach of this rule, and when regard is had to the arrangements surrounding the training of the dog. But Mr Schofield’s statement is of course no way definitive of the fact that his son is the source of the positive. As we state, we impose penalty on the basis that the reason for the positive is not known.

[69] The training situation, as described in the summary of facts, is unusual in that Mr Schofield junior appears to have the day-to-day contact with the dog and indeed with all of the dogs that are trained by the respondent. The respondent takes the dogs to the races. This would appear to be his only contact with them and thus with ZIPPING ANDRE.

[70] We see no aggravating or mitigating factors relating to the circumstances of the breach itself. Therefore, the starting point remains at four years. We do not believe a penalty less than disqualification, such as a suspension or a substantial fine is sufficient to reflect the seriousness of the breach or the respondent’s degree of culpability. Mr Schofield does not support his submission that a fine of $2,000 is appropriate by reference to decided cases or by pointing to exceptional circumstances that this Committee should consider.

[71] With respect to personal factors, we view the previous breach by the respondent’s son as being irrelevant to the penalty that we have to impose upon the respondent.

[72] There are clear and weighty mitigating factors. The most significant is the respondent’s exemplary record. He has had a lengthy and hitherto unblemished involvement in the industry. This includes actively being involved in its administration. We can thus understand Mr Schofield’s comment that he is “shattered by this positive swab”. This ‘loss of face’ is a penalty in itself and renders unnecessary a penalty imposed in the interests of specific deterrence. However, general deterrence is a significant consideration, as is accountability and denunciation.

[73] Further mitigating factors are the respondent’s co-operation with the inquiry and his admission of the breach, and the fact that the loss of public training privileges will impact financially upon his family, although we note this latter factor is a not uncommon consequence of disqualification.

[74] We believe these factors entitle the respondent to a 50 per cent reduction in our starting point. This leaves us with a penalty of two years’ disqualification. When we look at the comparator cases, this period of disqualification is significantly less than that in Newton, which we regard as a higher-end example as the respondent was a methamphetamine user, and is a slightly higher penalty than that imposed in NSW in Hunt, where no starting point is disclosed.

[75] We allow time for Mr Schofield to make kennelling arrangements for his dogs. The disqualification period commences on 14 May 2018 and concludes on 13 May 2020.

Disqualification of greyhound

[76] Pursuant to r 61.4 we disqualify ZIPPING ANDRE from Race 2 at the race meeting conducted by the Waikato Greyhound Racing Club at Cambridge on 29 December 2017. We also order repayment of the winning stake of $1,322.

Costs

[77] The RIU have applied for an award of costs in respect of the B sample, which was tested. We order costs of $1,035. The matter has been heard on the papers. There is no order for JCA costs.

Dated at Invercargill this 29th day of April 2018.

Geoff Hall, Chairman

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