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Non Raceday Inquiry RIU v G Bate - Decision dated 20 February 2019 - Chair, Mr P Williams

Created on 21 February 2019

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

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

BETWEEN

RACING INTEGRITY UNIT (RIU) - Informant

AND

GEOFFREY LEONARD BATE - Respondent

Judicial Committee: Mr Paul Williams and Mr Tom Castles

Appearing: Mr Oscar Westerlund, Investigator, RIU, as the Informant

Mr Geoffrey Leonard Bate, Licensed Owner, as the Respondent

Venue: Matter was heard on the papers

Date of Decision: Wednesday 20 February 2019

WRITTEN RESERVED DECISION OF JUDICIAL COMMITTEE

1] Mr Bate is charged with two breaches of Rule 127.4 (applicable at the time the breaches occurred) of the Greyhound Racing New Zealand Rules of Racing as stated below.

2] The first charge via Information A8471 states that “On Thursday the 26th May 2016 at Auckland, Geoffrey Leonard BATE a licenced Greyhound owner exported a greyhound namely “Opawa Knocka” in contravention of Rule 127.4 of the Greyhound Racing New Zealand Rules of Racing by failing to obtain prior approval of the Chief Executive or his/her delegate AND is therefore liable to the penalties which may be imposed pursuant to Rule 88.1”.

3] The second charge via Information A8742 states that “On Wednesday the 31st August 2016 at Auckland, Geoffrey Leonard BATE a licenced Greyhound owner exported a greyhound namely “Opawa O’Grady” in contravention of Rule 127.4 of the Greyhound Racing New Zealand Rules of Racing by failing to obtain prior approval of the Chief Executive or his/her delegate AND is therefore liable to the penalties which may be imposed pursuant to Rule 88.1”.

4] Rule 127.4 stated: “No registered Greyhound or Registered litter may be exported without the prior approval of the Chief Executive or his/her delegate. Such approval not to be unreasonably withheld. Prior approval will be granted by the Chief Executive if he or she is satisfied that the country of export has greyhound welfare practices similar to New Zealand.”

5] A teleconference was held on Wednesday 13 February 2019 during which Mr Bate confirmed what he had previously advised in writing i.e. that he admitted the two breaches of the Rules and wished the matter to be heard on the papers. Mr Westerlund indicated he had no objections to that happening. Also, at the teleconference Mr Bate confirmed he had received a copy, and agreed with the content of, the RIU’s Summary of Facts. Mr Westerlund also stated he wished to present a written penalty submission and it was agreed this would be provided to Mr Bate via the Executive Officer JCA and Mr Bate would be given 3 working days from the receipt of that document to provide a written response to the Executive Officer JCA after which the Committee would determine the penalty to be imposed. Those documents have been received by all parties and considered by the Committee.

SUMMARY OF FACTS BY THE RIU

6] A summary of the RIU’s Summary of Facts is below.

7] Mr Bate is semi-retired and a licensed Greyhound Owner and has no previous breaches of the Rules.

8] New Zealand Greyhound Racing Association (NZGRA) is tasked to keep and maintain records of all greyhounds registered and racing in New Zealand. During a recent audit they discovered their records for the greyhounds “Opawa Knocka” microchip number 956000003248733 and “Opawa O’Grady” microchip number 956000003343772 were incomplete and the information held on both dogs suggested they may have been taken out of the country without the correct documentation and certification to authorise such removal and export.

9] The matter was referred to the Racing Integrity Unit (RIU) for investigation and enquiries revealed that the dog “Opawa Knocka” was exported to Hong Kong on the 26th May 2016 and the dog “Opawa O’Grady” was exported to Australia on the 31st August 2016.

10] There were no records of an application for the prior approval of the Chief Executive of NZGRA or his/her delegate to have the dogs exported from New Zealand and nor were there any records to show that such prior approval was granted.

11] During the investigation the RIU were able to ascertain the facts as follows:

(i) Mr Bate was approached per telephone call from an unknown prospective buyer seeking to buy NZ Greyhounds for racing at the provisional Victoria circuit in Australia.

(ii) Mr Bate, who has been involved in the greyhound racing industry for a substantial number of years and is currently listed as a Licenced Owner of a greyhound racing in New Zealand, saw the opportunity to make some ‘quick easy money’ and used his knowledge and contacts to source the dogs “Opawa Knocka” and “Opawa O’Grady” from the Jean and Dave Fahey greyhound racing kennels for sale.

(iii) “Opawa Knocka” was purchased from the ‘Pave the Way Syndicate’, managed by Jean Fahey, for $6000.

(iv) “Opawa O’Grady” was purchased from ‘Opawa Racing Ltd’, managed by Robin Wales, for $6000.

(v) Mr Bate contacted the unknown prospective buyer and her agent duly paid the agreed purchased price in cash. The money was given to Mr Bate for dispersal. Mr Bate retained $2000 and had the remaining balance paid to the respective vendors.

(vi) In both cases, a transfer of ownership certificate was not completed to show either Mr Bate or the prospective buyer as the new owner/s.

(vii) On the 26th May 2016 “Opawa Knocka” was airlifted to Hong Kong.

(viii) On the 31st August 2016 “Opawa O’Grady” was airlifted to Melbourne, Australia.

12] Mr Bate was spoken to by the RIU and he admitted his involvement in this matter. In an email to Jean and Dave Fahey and Robin Wales on 9 November 2018 Mr Bate expressed remorse for getting involved and for dragging them into it saying obtaining ‘quick easy money’ was his motivation. Included in the email was the following:-

Please believe me that It was never my intention to deceive any of you in any way. I accept the fact to you all that I failed to:

• Gather any information on the woman who called me to buy dogs in the first place.
• Check any documentation relating to transportation ex NZ.
• Check that these dogs were in fact racing in provincial Victoria as informed once purchased.
• Check whether I was contravening any NZ or Australasian Greyhound Racing rules any shape or form.

The cold hard truth is that I saw a way to make some quick easy money & took it.

COMMENT ON THE RIU’S SUMMARY OF FACTS BY MR BATE

13] Mr Bate has provided the Committee with written confirmation of his agreement with the Summary of Facts.

SUBMISSIONS ON PENALTY BY THE RIU

14] A summary of the RIU’s submissions on penalty is below.

15] The respondent Geoffrey Leonard Bate holds an Owner licence under the Greyhound Racing New Zealand Rules of Racing. He has been involved in the Greyhound racing industry all his adult life. He is 63 years of age and is semi- retired.

16] Mr Bate has admitted the breach against (the previous) Rule 127.4 under the Greyhound Racing New Zealand Rules of Racing. A Breach of Rule 127.4 under the Greyhound Racing New Rules of Racing is thereby an offence under (the previous) Rule 88.1(a) of the said Rules.

17] The key principles of sentencing applicable in this matter are that:-

- the penalty punishes the offender for his/her wrong doing
- the penalty has the effect of deterring others from committing similar offences
- the penalty should also reflect the disapproval of the JCA for the type of offending in question.

18] There is no known similar precedent in New Zealand as it relates to this breach. In support of this penalty I will refer to a number of Greyhound Racing New South Wales decisions which may be of some assistance. GRNSW is strongly committed to upholding animal welfare standards for Australian greyhounds within Australia and also assessing the adequacy of arrangements in international exports destinations for those greyhounds.

19] On 9 June 2016, GRNSW announced that 179 industry participants faced charges in relation to the unauthorised export of greyhounds.

20] On 23 October 2017, the Steward chairing the Inquiry found Mark, Donna and Stephen Farrugia guilty of over 180 charges between them in relation to the export of greyhounds to China and Macau. Mark and Stephen Farrugia received maximum fines of $22,000 each, and periods of suspension, amongst other sanctions.

21] On 24 April 2018 the Steward found Paul Wheeler guilty of facilitating the export of 10 greyhounds to China, for which he received a period of one-year disqualification and maximum fine of $22,000.

22] On 31 May 2018, GRNSW announced a number of penalties against Sam and Patricia Cauchi in relation to the export of 212 greyhounds to Macau. The Cauchis’ each received periods of disqualification and maximum fines of $22,000.

23] The cases that I have referred to are ‘serious breaches of the export Rules’.

24] Mr Bates’ matter is at the lower end of offending in this context. Mr Bate left all responsibility for the buyer of the greyhounds to obtain the necessary documentation. He should have followed up to confirm that the relevant documentation for the greyhounds had been obtained. As far as Mr Bate was concerned the greyhounds were going to Australia, however, one greyhound found its way to Hong Kong.

25] In mitigation, Mr Bate admitted the breach at the first opportunity and has been fully co-operative throughout the process. He has accepted full responsibility for the breach of the Rule and has no previous breaches of it.

26] The aggravating features are that Mr Bate has been involved in the Greyhound racing industry for some time and knows the importance of maintaining the integrity of racing. If he was unsure of the correct paper work required, he should have made the appropriate enquiries with the relevant contacts at NZGRA. He should have been aware of what was going to happen to the greyhounds once exported overseas and made follow up enquiries on the dog’s welfare and the ownership and racing status of the greyhounds. Finally, he took cash payments from an unknown person who purchased the dogs.

27] In conclusion, The RIU request that the matter be dealt with by way of a monetary penalty. Mr Bate made a $1,000 profit on each sale and that an appropriate amount to send a deterrent message is $2000 per charge – a total fine of $4000.

SUBMISSIONS ON PENALTY BY MR BATE

28] Because this is the first case of its kind to be considered by the JCA, Mr Bate’s full submission on penalty is reproduced below rather than a summarised version.

29] “I would firstly like to comment on the Aggravating Features. Yes, I have been involved in the Greyhound racing industry for many years and I know the importance of maintaining the integrity of racing. When I agreed to facilitate the sale of these two dogs for the purchaser there was no thought of any kind that I was about to be in breach.

30] I have imported numerous dogs from Australia & have never had to ask the NZGRA for permission to import one. Why would I for one moment think that I would need permission to export one? Why is permission sort one way…but not the other? Since this investigation commenced I have asked a multitude of people within the industry if they were aware that permission from the NZGRA was required before one could export a Greyhound offshore and I have not met one individual that knew this to be the case. Back in 2016 when the offences occurred licence holders ( owners ) were not even issued with Rule books as is now the case to look up such rules.

31] I accept in full my failing in this regard. Yes, I took cash for the payment of these two dogs. Why is there an issue with me dealing in cash? I have seen dogs change hands or pups purchased at the track and off it for cash on numerous occasions on a handshake. It’s irrelevant.

32] In relation to any mitigating factors I ask the Committee to note those outlined by Mr Westerlund.

33] In relation to the sentencing principles listed by Mr Westerlund I believe the penalty is designed to punish the offender for his wrongdoing. That they are not meant to be retributive and disproportionate to the offence.

34] In my view the suggested penalties are grossly disproportionate to the offence and do appear retributive. Take the case of M D and S Farrugia who were found guilty of 180 charges and were fined $22000 that’s $122 per charge or in the case of S and P Cauchi 212 dogs, that’s $103 per charge. In the case of P Wheeler who was fined the same for 10 greyhounds. He was the leading trainer and breeder in Australia, had administration staff and was the industry leader. He may have been charged with exporting only 10 dogs but it is common knowledge even in NZ that he sent dozens more. He made a massive greyhound business making millions in profit. A $22k fine to him is like a $20 fine to me.

35] But more importantly, the obvious and clear difference is that these people deliberately exported the dogs to the respective countries. I didn’t. Of particular importance in my view are the dates of the GRNSW offending 2017-2018 well after mine, when restrictions and changes to the laws not allowing this were being both enforced more rigidly and becoming common knowledge and that accountability rules were being put in place for every greyhound. I was under the impression that these dogs were going to Australia not China (one did ). Yes, I was remiss re not checking documentation etc, naive in my dealings even, but I was as shocked as everyone upon discovering that these dogs were in China. I also find it bizarre that if the export of greyhounds to China were illegal, why then, were all the animal transport operators not informed to block such shipments and notify the NZGRA. There are only a small number of such operators. Had that been enacted then I would not even be in this mess. The penalty is also disproportionate as my wife rightly pointed out when reading the document that I only made $500 per dog not $1000 as I had recalled. It was $1000 in total.

36] There is a real irony here, because the truth is that had the purchaser actually told me that the dogs were going to China I would still not have realised that I was breaking any rules. It was right around that time that super sire “Mogambo” was sold to Chinese interests for $300k & shipped there. It was common knowledge that this sale and export went ahead. How was that not stopped or punished? The only reason that I am not in deeper trouble is that I saw a red flag when informed by a trainer who I had told what I had done that the rules were changing and that I had better be “damned sure where these dogs were ending up”.

37] If the purpose of charging and penalising me is to stop a repeat, then you have already achieved your goal. I wouldn’t entertain exporting another Greyhound anywhere as long as I can draw breath. I also point out that back in 2016, apart from activity on course where stipes are present and trainers and license holders were held to account for their behaviour, away from the track any number of shocking breaches occurred relating to greyhound welfare. Very few have faced charges. My offending is minute by comparison. I find homes for all my retired race dogs. I have one at home. I would never knowingly send a dog somewhere that I felt or knew it may be treated badly. Everything has changed and quickly. EVERYONE now knows that our dogs must be accounted for during their entire life. This was not the case in 2016.

38] I feel strongly that my offending in this instance warrants a fine of no more than $200 per charge. I’ve learned a valuable lesson here, not to mention losing a lot of sleep and suffered immense embarrassment and humiliation by failing respected breeders and trainers who have trusted me only to end up the innocent parties that I so ineffectively represented. While these relationships have not been destroyed, the only reason I have not been ostracized completely is because they believe that while my actions have put their respective reputations at risk I did not do so deliberately. But believe you me, damage has been done.

39] I will not challenge whatever punishment you hand down. I need to put this behind me and move on with my life. I simply ask that you take into consideration my genuine remorse. I’m very sorry. I wish I had never gotten involved”.

REASONS FOR PENALTY

40] The Committee has considered all of the written submissions provided by both parties. This is the first breach of the previous Rule 127.4 ever referred to the JCA and the Committee is also not aware of any comparable breaches in the two equine Codes. We have taken into account Mr Bate’s admission of the two breaches, his cooperation with the RIU’s investigation and his clear record in relation to this breach. We have also noted the timing of, and size of the penalties imposed in the Australian cases referred to by Mr Westerlund and Mr Bate but, given the number of greyhounds involved in those cases, we do not consider the penalties imposed should overly influence us in determining an appropriate penalty to impose on Mr Bate.

41] There are a number of aggravating factors to be considered. Mr Bate knew he was breaching the Rules of Greyhound Racing New Zealand in selling the greyhounds to overseas buyers without the necessary approval of Greyhound Racing New Zealand. Further, he betrayed the trust of 2 licensed Greyhound trainers in obtaining the two greyhounds that were on-sold to Hong Kong and Victoria, Australia and he has readily admitted he saw the sale of the greyhounds as a way of making some easy money. It goes without saying he was also not interested in the welfare of the greyhounds as he admitted to the Faheys and Mr Wales he didn’t make any follow up enquiries to see if they did end up where he was told they would be going. Further, in addition to his own deliberate decision not to follow due process in relation to his actions, he did not follow up with the purchaser of the greyhounds to see whether that person had met their obligations under Rule 127.4.

42] Rule 88.1 stated: - 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; and/or
(b) Suspension; and/or
(c) Disqualification; and/or
(d) Warning Off

43] The Committee notes the penalty submission of the RIU and that a fine of $4000 - $2000 for each of the two breaches of the Rule - is being sought. The size of the Mr Bate’s “cut” from the sale of the two greyhounds has been a factor taken into consideration by the RIU in making their penalty submission. Whilst agreeing in writing with the RIU’s Summary of Facts, which stated he pocketed $2000 from the sale of the greyhounds, Mr Bate has subsequently denied this and said he received $1000 in total and on that basis believes he should only be fined $200 on each charge. Whilst the “profit” from the sale of the greyhounds is noted it is one of several factors that have been taken into consideration when making our penalty decision.

44] The Committee believes that, notwithstanding only 2 greyhounds were exported, this is a serious breach of the Rules as evidenced by the fact that the maximum penalty for each breach is a fine of $10,000. Because, as mentioned previously, this is the first breach of the “export” Rule we have not considered what an appropriate starting point penalty should be and then adjusted for mitigating and aggravating factors. Instead, we have decided on a penalty of a fine which we believe recognises the scale of offending and which will also act as a deterrent to others who may be contemplating similar actions.

PENALTY

45] Mr Bate is fined $1000 on each of the two charges, meaning the total penalty is a fine of $2000.

COSTS

46] The RIU did not seek an order for costs and as the matter was heard on the papers there will be no order for costs in favour of the JCA.

Dated at Wellington this 20th day of February 2019.

Paul Williams

Chairman

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