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Non Raceday Inquiry RIU v J McInerney - Decision dated 23 December 2019 - Chair, Mr T Utikere

Created on 26 December 2019

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT
Informant

AND J McINERNEY
Respondent

Judicial Committee: Mr T Utikere (Chairman) - Mrs N Moffatt (Member)

Parties:                    Mr K Coppins (for the RIU) - Mr J McInerney (as the Respondent)

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WRITTEN DECISION OF JUDICIAL COMMITTEE DATED 23 DECEMBER 2019

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FACTS

[1] The Respondent has been charged with a breach of Rule 45.11 of the New Zealand Rules of Greyhound Racing.

[2] The relevant Rule is as follows:

Rule 45.11: Where the weight of a Greyhound recorded at a Meeting varies by more than one and a half (1.5) kilograms from the weight recorded in a Race in which it last performed that Greyhound shall be permitted to compete in the current Race but the Trainer of the Greyhound shall be guilty of an Offence unless permission has been granted under Rule 45.12.

[3] The specific Information alleged that at the Palmerston North Greyhound Racing Club’s Meeting on 9 December 2019, the Respondent:

Information No A10279
“presented SUMMER GLEE up 1.8kg from its previous race weight on 2 December 2019. Previous weight 30.8kg, today’s weight 32.6kg”.

[4] The Information had been signed by representative Sammy Stone who had endorsed the Information as admitting the breach. The Information also indicated that the Respondent did not wish to be present at the hearing of the Information.

[5] The Committee issued a Minute (dated 11 December) identifying that it would determine this matter on the papers, and set a timeframe for the filing of submissions which we have now received.

SUBMISSIONS

[6] For the RIU, Mr Coppins simply identified that the breach had occurred and proceeded to make submissions on Penalty. Upon receipt of this, the Committee sought a response to two questions from the RIU, namely:

1. How many breaches of Rule 45.11 had occurred within the Central Districts (Manawatu and Hatrick Raceways) during the previous 12 months period?;
2. How the number of breaches of Rule 45.11 by Mr McInerney compared with other trainers who had breached the Rule at Central Districts meetings over that time period?

[7] In response, Mr Coppins advised that there had been 17 breaches of the Rule within the Central Districts over the previous 12 months and that of those, Mr McInerney was responsible for seven of the breaches, which also included the current breach. He also identified that four of those breaches had been within the previous 120 days and in comparison with other trainers in the area: three had two breaches each and four had single breaches.

DECISION

[8] As the charge is admitted, we deem the charge to be proved.

PENALTY SUBMISSIONS

[9] The RIU have submitted that a penalty of a $300 fine is appropriate. They base this on previous breaches where a fourth breach within 120 days has been admitted and/or proved. They also refer to a previous breach of this Rule by Mr McInerney on 25 September which went to appeal, where the end result was a fine of $300.

[10] Mr McInerney also filed brief written submissions. He stated that the breach was not disputed and acknowledged that he had breached the Rule “on a number of occasions” (1). He believed that the current breach was the fourth one and that he “must” be treated as such when approaching the quantum of penalty.

[11] He confirmed that he was disappointed with the breach, but had put steps in place following the last charge. He could not explain the reason for the current breach, but concluded that it must have been human error. He respected the RIU’s penalty submission and believed that based on previous breaches of the Rule where it was the fourth time within 120 days, a $300 fine was more than adequate.

REASONS FOR PENALTY

[12] It is accepted that this is the Respondent’s fourth breach of the Rule within a 120 days window. The third breach was referred to the JCA for penalty, as is the case with the current breach.

[13] The RIU in their submissions refer to the previous Appeal decision of JT McInerney v RIU(2). We have reviewed that decision and take note of some salient points in our approach to determining penalty. In particular, that the McInerney kennel has two bases, one in each Island; the vast number of dogs that the Respondent races; concerns around the potential accuracy of the scales on occasion; and the steps taken by Mr McInerney since previous breaches.

[14] Mr McInerney has indicated to this Committee that he has taken steps to address his offending following this most recent breach, but has not articulated what those specific steps are. We note from the Appeal Decision(3)  that reference is made to steps that he had taken following the breach on 31 March to mitigate further breaches, yet Mr McInerney continues to breach the Rule despite these apparent measures that have been put in place.

(1) Mr McInerney's Written Subission date 18 December 2019.

(2) JT McInerney v RIU, Decision of Appeals Tribunal dated 19 November 2019.

(3) Ibis., At Para[16].

[15] With regard to former concerns about the scales, he has not advanced that in his current submissions, indicating that the breach was a result of human error. We also note that the Appeals Tribunal determined(4) that it was appropriate to treat the 25 September matter as a third breach for the purpose of approaching penalty, and imposed a $300 fine. When approaching the question of penalty for a third breach (on 2 April), the fine was also $300.

(4) Ibid., At Para [24].

[16] Any suggestion that the total number of breaches for Mr McInerney needs to be offset by the large number of dogs that he trains, carries little weight with the Committee. This is because other trainers do not seem to have a problem to the extent that he does in relation to overweight charges.

[17] We are not aware if the overweight was notified at an early stage to minimise any impact on the betting public, or whether or not the dog was a favoured runner, which in our view is largely irrelevant.

[18] In the context of the current breach, we form the view that there must be a deterrent factor as Mr McInerney’s operation has an extremely poor record under the Rule within the previous 12 months period. In fact, the response from the RIU indicates that the Respondent has the worst record in the Central Districts, and quite possibly in New Zealand.

[19] First and second breaches of this Rule are dealt with in a specified manner under the Minor Infringement Scheme. However, third and subsequent breaches, within a defined 120 days window, are referred to the JCA and are therefore, in our view, considered outside of the defined set Minor Infringement Scheme penalties.

[20] If the penalties for a third, fourth or subsequent breach were going to consistently be set at $250 or $300, then that defeats the purpose, in our view, of having such penalty considerations referred to the JCA. Setting penalty should not be seen as an iterative process, nor is it a mere robotic calculation. What Judicial Committees are required to do is assess each breach, whilst having cognisance of previous breaches of a similar nature. In requiring a breach to be referred to the JCA, it is then over to a Judicial Committee to determine an appropriate penalty based on the specific circumstances and context of the breach.

[21] It has been held in other judicial decisions that concern third or subsequent Minor Infringement breaches in other codes, that it is appropriate for a wider view of a Respondent’s history under the specific Rule, beyond the immediate 120 days, to be taken into account when assessing penalty. In this context, when we assess Mr McInerney’s record under Rule 45.11, we note seven breaches within the Central Districts within the previous 12 months period, compared with other trainers who had one, two or no breaches within the same period. Given he has operations in both Islands, there is clearly a disproportionate level of offending under this Rule with his Central Districts operations.

[22] As identified in the JT McInerney v RIU Appeal Decision, for a fourth breach that occurred on 25 May, the Committee adopted a $300 starting point. It then provided a $100 discount for mitigation aspects around the accuracy of the scales.

[23] In line with what was identified by the Appeals Tribunal, for this fourth breach we adopt a starting point of a $300 fine, noting that there is little, if any, mitigation to be applied for admitting a breach of this Rule.

[24] In any event, Mr McInerney, regardless of the number of dogs he trains, has an appalling record under this Rule. The responses from the RIU indicate that. Clearly the steps he has taken in an attempt to alleviate further breaches has had little effect. He simply cannot continue to breach Rule 45.11 and expect a similar fine for subsequent breaches - that defeats any deterrent factor to ensure compliance with the Rules of Greyhound Racing.

[25] In our view, this is a significant aggravating feature and warrants an uplift to reflect his poor record and the need for the sentencing principle of deterrence to be applied. In such a circumstance, we consider a $500 fine as entirely appropriate on this occasion.

PENALTY

[26] Mr McInerney is fined $500.

COSTS

[27] As this matter was determined on the papers, there will be no order for costs.


Signed at Palmerston North this 23rd day of December 2019.

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Mr Tangi Utikere
Chairman

 

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