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Non Raceday Inquiry RIU v J T McInerney - Reserved Decision on Penalty dated 13 July 2017 - Chair, Mr R G McKenzie

Created on 17 July 2017

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association

IN THE MATTER of Informations Nos. A5048 and A5049

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND JOHN THOMAS McINERNEY of Darfield, Licensed Public Trainer

Respondent

Judicial Committee: R G McKenzie (Chairman)

S C Ching (Committee Member)

Present: Mrs K R Williams, the Informant

Mr J T McInerney, the Respondent

Mr R A Quirk, Registrar

Venue: Rangiora Racecourse, Rangiora

Date of Hearing: 9 July 2017

Date of Decision: 13 July 2017

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

The Charges

[1] Information No.5048 alleges that:

(1) On the 25th April 2017, John Thomas McInerney, being the registered trainer of the greyhound JOEY BAXTER presented the greyhound to race in Race 2, Southland & Otago Photo Finish, at the Southland Greyhound Racing Club meeting with a prohibited substance, namely Ketoprofen, in its system . . in breach of Rule 86.1 and 86.3 of the Greyhound Racing New Zealand Rules; and

[2] Information No.5049 alleges that

(2) On the 25th April 2017, John Thomas McInerney, being the registered trainer of the greyhound WHEELCHAIR NORM presented the greyhound to race in Race 5, Added Energy Dash, at the Southland Greyhound Racing Club meeting with a prohibited substance, namely Ketoprofen, in its system . . in breach of Rule 86.1 and 86.3 of the Greyhound Racing New Zealand Rules.

[3] Mrs Williams produced a letter dated 27 June 2017 signed by Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the filing of the information.

The Plea

[4] Mr McInerney had signed the Statement by the Respondent at the foot of each information form indicating that he admitted the breach.

[5] Mr McInerney was present at the hearing of the Informations. The above charges and Rules were read to Mr McInerney at the commencement of the hearing and he indicated that he admitted both charges.

The Rules

[6] Rule 86 [now Rule 66] of the Rules of New Zealand Greyhound Racing Association provides as follows:

86.1 The Owner, Trainer or person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substances.

86.3 Without limiting the provisions of any 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.

Summary of Facts

[7] Mrs Williams presented to the hearing the following Agreed Summary of Facts:

1. The Respondent, John Thomas McInerney, is a licensed Public Trainer under the Rules of the New Zealand Greyhound Racing Association.

2. On the 25th April 2017, JOEY BAXTER was correctly entered and presented to race by Mr McInerney in Race 2, Southland and Otago Photo Finish, at the Southland Greyhound Racing Club meeting at Ascot Park Raceway.

3. JOEY BAXTER finished first in the race winning a stake of $840 which was paid to the trainer. JOEY BAXTER is owned by T B Provost.

4. Following the race, the greyhound was routinely swabbed, swab number 87245, in the presence of the trainer Mr McInerney and he does not contest the swabbing process.

5. On the 25th April 2017, WHEELCHAIR NORM was correctly entered and presented to race by Mr McInerney in Race 5, Added Energy Dash, at the Southland Greyhound Racing Club meeting at Ascot Park Raceway.

6. WHEELCHAIR NORM finished first in the race winning a stake of $1440 which was paid to the trainer. WHEELCHAIR NORM is owned by M W Bell.

7. Following the race, the greyhound was routinely swabbed, swab number 87249, in the presence of the trainer Mr McInerney and he does not contest the swabbing process.

8. All 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 New Zealand Greyhound Racing Association.

9. On the 11th of May 2017, the New Zealand Racing Laboratory reported in writing that the sample from WHEELCHAIR NORM - 87249, had tested positive to Ketoprofen.

10. On the 17th of May 2017, the New Zealand Racing Laboratory reported in writing that the sample from JOEY BAXTER - 87245, had tested positive to Ketoprofen.

11. Ketoprofen is a prohibited substance within the meaning of the Rules and its presence in a race day sample is, prima facie, a breach of the rules. Ketoprofen is classed as a Category 5 Prohibited Substance that has the ability to improve or impact the performance of a greyhound. Dr M L Jansen, GRNZ Veterinary Advisor, advised that “Ketoprofen is an anti-inflammatory, analgesic and antipyretic drug in the propionic acid class of nonsteroidal anti-inflammatory drugs commonly known as NSAIDS. In New Zealand, it is only available as a 10% or 15% solution for injection for use in horses and cattle. Ketoprofen is no longer available in New Zealand as a 1% solution or as a 5mg or 20mg tablets for use in cats and dogs. It has a meat withholding time of 4 days and racing withholding time of 4.2 days. It is possible that a horse or cattle beast treated with Ketoprofen within four days of slaughter and used for pet food could give rise to a positive urine test in a racing greyhound.”

12. Mr Johnny McInerney, son [of the Respondent], was interviewed on 15th May 2017, as Mr McInerney Snr was out of the country. Mr McInerney Jnr was very cooperative and gave the RIU full access to the property. Ketoprofen was not found on the property.

13. Enquiries with Mr McInerney’s vet confirmed that they do not stock and have not supplied Ketoprofen as “it is more of a large animal drug”.

14. Mr John McInerney, trainer, was interviewed on 24th May 2017. Mr McInerney requested that the reserve samples be tested on both samples.

15. Mr McInerney advised that they process all of their fresh meat themselves which is sourced mainly from local farmers. Some horse meat is used but their main source is cow meat and they use 20 - 30 cattle beasts a week. Any that have been treated are tagged and put through a hogger and fed solely to the non-racing dogs. The cattle that have not been treated are boned out and the meat used for the racing dogs. The McInerney’s advised that they take great care in checking that the animals have not been treated and after being aware when they have to maintain protocols to keep treated meat separate from untreated meat. Some meat is stored in a freezer.

16. Mr McInerney made enquiries with the farmers regarding the meat that had been sourced in the previous month to the positive swabs and no source of Ketoprofen was found.

17. On 22 June Mr McInerney was advised that Racing Analytical Services Ltd, the Melbourne Racing Laboratory, confirmed that both of the reserve samples had tested positive to Ketoprofen.

18. Mr McInerney has been a trainer for many years and, since 2003, has trained over 6,700 winners, winning stakes of over $11,000,000 and has been leading trainer on many occasions with a large number of greyhounds racing and being swabbed.

19. Mr McInerney has four previous breaches of this rule:

1997 – Procaine – no penalty costs $200 to GRNZ, appealed 1999, costs $3500

2001 – Heptaminol – fined $1000

2010 – Codeine – fined $3,500, 6a Hydroxy Stanozolol - fined $1,500

2013 – Caffeine – fined $3,000.

The Penalty Rule

[8] The penalty Rule is Rule 88.1 [now Rule 61.1] which provides:

Any Person found Guilty of an Offence under these Rules shall be liable to:

a. A fine not exceeding $10,000.00 for any one (1) Offence; and/or

b. Suspension; and/or

c. Disqualification; and/or

d. Warning off.

[9] The Rules also require the mandatory disqualification of the greyhound. Rule 86.4 [now 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.

Informant’s Penalty Submissions

[10] Mrs Williams presented the following written penalty submissions:

1. Mr McInerney has pleaded guilty to breaches of Rules 86.1 (61.1) and 86.3 (61.3) after presenting two greyhounds with prohibited substances in their systems, namely;

- JOEY BAXTER - Ketoprofen - Southland GRC - 25 April 2017,

- WHEELCHAIR NORM - Ketoprofen - Southland GRC - 25 April 2017.

2. The penalty provisions that apply in this case are outlined in Rule 88.1 (63.1).

Rule 88.1 (63.1)

Any person found guilty of an offence under these Rules shall be liable to:

a. A fine not exceeding $10,000.00 for any one (1) offence; and/or

b. Suspension; and/or

c. Disqualification; and/or

d. Warning off.

3. The Rules also require the mandatory disqualification of the greyhounds: Rule 86.4 (61.4) states:

86.4 (61.4) Any greyhound which competes in a race and is found to be the recipient of a Prohibited Substance shall be disqualified from that race.

4. Sentencing Principles -

The four principles of sentencing can be summarised briefly

● Penalties are designed to punish the offender for his / her wrongdoing. They are not 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 like offences.

● A penalty should also reflect the disapproval of the J.C.A. for the type of behaviour in question.

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

The first three principles are particularly important here.

5. Relevant Precedents –

In addition to the sentencing principles, the Judicial Committee should have regard to relevant precedents. There have been no greyhound trainers with positives to Ketoprofen in New Zealand but there have been in Australia.

Greyhound Racing Victoria v G Burton – 12 September 2012

Subject: Ketoprofen - fined $2,000 ($1,000 suspended for 12 months pending no further breaches).

A number of Thoroughbred and Standardbred trainers have been charged with a breach but these are of limited value as Ketoprofen is a NSAID that is commonly used in horses. Ketoprofen is not used on greyhounds and relevance should be given to previous cases where positives swabs have been as a result of contaminated meat as is thought to be the case here.

R.I.U. v S & B Evans – 24 May 2017

Subject: Procaine & Flunixin - three positives – fined $2,000 ($1,000 on first charge, $500 on 2nd and 3rd charge) and greyhounds disqualified. Source of positives was thought to be contaminated meat.

R.I.U. v S J Payne – 5 June 2016 - Appeal

Subject: Procaine - three positives with two greyhounds – fined $2,000 ($1,000 on first charge, $500 on 2nd and 3rd charge) and Greyhounds disqualified. Source of positive thought to be contaminated meat. Extract from decision: “Just as in the Lawrence case the breach by Mr Payne is properly described as an offence for which absence of fault or culpable conduct on the part of the person charged is no defence. That means that Mr Payne is liable for the positive swabs although there is no fault or culpable conduct on his part.”

RIU v D Stapleton - 22 October 2015

Subject: Procaine - positive with one greyhound - from contaminated meat - fined $2000 and the dog was disqualified.

R.I.U. v G A Lawrence – 18 August 2015

Subject: Morphine - three positive swabs resulting from contaminated kibble, fined $4,000, penalty appealed, reduced to $2,000 and greyhounds disqualified.

Given the unique circumstances in the present case and if it only involved a single breach the Committee is of the opinion that a fine of $3,000 would be appropriate for this breach. After taking into account the compelling mitigating factors and because two Greyhounds are involved this necessitates three separate charges. However, to impose a fine of $3,000 for each breach – a total of $9,000 – would result in a disproportionately severe penalty and the totality principle requires the Committee to ensure that Mr Lawrence receives an appropriate overall sentence. It is therefore necessary for us to adjust the total of the fines downward in order to achieve an appropriate relativity between the totality of Mr Lawrence’s culpability and the totality of the fines.

Appeal decision: It accepted that Mr Lawrence had not deliberately fed the dogs anything containing morphine with a view to obtaining an advantage in their performance and commented that Mr Lawrence’s integrity as a trainer of greyhounds was not challenged by the Racing Integrity Unit.

Appeal decision: The description of a breach of R. 87.1 as an offence of “strict liability” is conceptually inaccurate. The breach is more accurately described as an offence for which absence of fault or culpable conduct on the part of the person charged is no defence. In that regard, it is in the nature of an offence of absolute liability rather than one of strict liability. Proof of the offence does not require proof of culpable conduct on the part of the person charged, nor, for the reasons recorded earlier, is the absence of culpable conduct a defence to the charge. Once the offence is proved, or admitted as the case may be, the person charged is liable to the penalties prescribed in R. 89.1. That is a fine not exceeding $10,000 for any one offence, and/or suspension, and/or disqualification and/or warning off. The Rules do not provide for any exemption from those penalties for persons found to have breached R. 87.1 but who have not been guilty of any culpable conduct associated with the breach. The reasons for that relate to the particular function R. 87.1 and similar Rules in the other racing codes have in preserving and maintaining integrity and public confidence in the racing industry.

6. Aggravating Features –

It is believed that the source of the positive swabs is from contaminated meat and trainers are reliant on farmers providing correct information about any treatments given to animals that they take. It has to be noted that the animals that are taken for meat processing are either sick animals that have been treated or animals that have sustained serious injuries that require them to be put down. It will always be a risk for trainers sourcing meat in this way and consequently they will bear the consequences if the meat is contaminated. Trainers have to ensure that they have robust procedures in place for checking if an animal has been treated and keeping treated meat separate from non-treated meat. On this occasion Mr McInerney gets the meat from the source, it is not obtained through a third person.

Mr McInerney has four previous breaches of this Rule.

7. Mitigating Factors –

There was no malicious intent, the dogs had not been treated in any way and the drug involved is used on large animals only.

Mr McInerney maintains a very professional kennel that is of the highest standard.

Mr McInerney admitted the breach at the first opportunity and has co-operated fully throughout the investigation.

8. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $3,000 - $4,000.

The reason for this figure is that the GRNZ Board approved new starting points for the Racing Integrity Unit and the Judicial Control Authority to consider for drug offences. The new starting points apply for offences committed from 1 September 2014. Ketoprofen is classed as a Category 5 Prohibited Substance and the recommended starting point is a 3 months disqualification and/or a fine of $4,000. However, taking into account the Payne and Lawrence decisions as above and other mitigating circumstances a fine of $3,000 - $4,000 is appropriate.

Credit has to be given for the manner in which Mr McInerney and his kennel staff have conducted themselves during this inquiry and also the early guilty plea.

We also seek the disqualification of JOEY BAXTER and WHEELCHAIR NORM under Rule 86.4 and the refund of the winning stakes.

9. The R.I.U. are seeking costs of the reserve sample testing.

Submissions of the Respondent

[11] Mr McInerney submitted that it was agreed that the source of the Ketoprofen was the meat that he feeds his dogs.

[12] He then proceeded to explain how he obtains that meat. The farmer phones and asks them to pick up a cow. The farmer is asked if the cow has had any treatment. Mrs McInerney asks the farmer again when she goes to collect the cow. If it has been treated, it is tagged with orange tape to clearly identify it. The farmer is then asked to sign a book with the tag number of the cow.

[13] Since the positives to Ketoprofen were discovered, they have contacted all of the farmers and checked their treatment books. None of the cows had had Ketoprofen administered.

[14] When he and his wife are away on holiday, the staff follow the same procedures.

[15] The clean cows are boned out and put through a mincer and stored in the freezer in white plastic bags. If they are placed in the refrigerator, the meat is placed in white plastic buckets. The treated cows are not boned out but go straight through a hogger and the meat is stored in black plastic bags or tubs.

[16] He submitted that the most likely scenario was that one of the farmers or the farmer’s staff has administered the drug and not recorded it in the drug book. The farmers have a strict responsibility also as regards the milk.

[17] When the cows arrive on his property, Mr McInerney said, either he or a staff member, who is a butcher, do all of the boning out and mincing. It takes a half hour to do a treated cow that cannot be fed to racing dogs and it takes over an hour to do a “clean” cow that is fed to racing dogs. Horses are not even skinned. The legs are removed and they go through the hogger, bone and all. The treated cows go through a hogger and the meat has bone in it so it is impossible to confuse that meat with the meat from the “clean” cows.

[18] Mr McInerney said that he and his staff had gone back through the records of all farmers for a month prior to the positive swabs, and those records showed that none of those farmers had supplied any treated cows during that period.

[19] He has tried to establish the excretion times for Ketoprofen, but not knowing the levels of the swabs, there does not appear to be any data on secondary treatment with infected meat. The dogs going to Invercargill to race would have been fed at 4.00pm on the trip down the previous day. He understood that the drug comes out of the cow’s system in 4½ days, so the milk can be used after that.

[20] Mr McInerney expressed a concern over the lack of security in the kennel block at Ascot Park. There is no video surveillance and there was someone working in the kennels whom, he believed, was not permitted to be on a racetrack.

[21] Mr McInerney said that he asked for the B sample from JOEY BAXTER to be tested as the first test on that greyhound was clear. A false positive can occur, as was the case with Fonterra milk. Both B samples came back positive.

[22] Mr McInerney assisted the swabbing steward on the raceday with the swabbing of JOEY BAXTER as he is a very “spooky” dog. He tried for some time, unsuccessfully, to get a sample. One of his raceday staff was also unsuccessful. Another staff member persevered and finally managed to get a sample. The process took a long time but they were not trying to hide anything, Mr McInerney said.

[23] Prior to the Invercargill race, WHEELCHAIR NORM had won seven consecutive races and, on the day, won and set a track record. Since then, the dog has been swabbed after every race and has equalled his track record.

[24] Mr McInerney said that he starts over 5,000 dogs in a season and his dogs are regularly swabbed.

[25] These charges have cost him a lot of time and stress. He submitted that an appropriate penalty would be the same as that imposed on Trainers, S & B Evans, for similar breaches.

[26] A trainer’s job is difficult now with positive swabs being returned after use of horse and cow meat and kibble. His kennel has adopted the strictest procedures to avoid use of contaminated feed.

[27] Mr McInerney was asked by the Committee how many farmers he obtains meat from. His answer was approximately 40. Between his two operations, he uses three cows per day, each yielding about 120 kilograms of meat. Most of the cows are dead when they pick them up. The cow meat is necessary to feed to their dogs. The dogs are also fed rice (the night before a race), kibble and bread.

[28] He knows most of the farmers and trusts them – some he has been dealing with for 30 years. One of the farmers has “slipped up”, he submitted. He does not believe that the failure has happened at his kennels.

Reasons for Penalty

[29] The penalty Rule is Rule 88.1 (now 68.1). It is set out in paragraph 2 of the Informant’s penalty submissions above.

[30] Greyhound Racing New Zealand has prescribed starting points for breaches of the Prohibited Substance Rule according to the category of the particular prohibited substance. In the present case, the prohibited substance, Ketoprofen, is in Category 5 (“all substances that are registered in New Zealand for Veterinary use and have accepted therapeutic benefits to a greyhound”). The starting point for a Category 5 prohibited substance is disqualification for 3 months and/or a $4,000 fine. The Informant did not seek disqualification in this case.

[31] The Respondent had been purchasing cow meat which, we were told, was obtained from as many as, perhaps, 40 different farmers most of whom he knew, and many of whom he had known for 30 years. Mr McInerney told us that he uses three cows per day and, according to the Summary of Facts, 20 to 30 per week.

[32] Mr McInerney insists on very strict standards from his suppliers to ensure that any animals that have been treated are identified, so that they can be dealt with accordingly. Likewise, there are very stringent procedures in place at the kennels which procedures, according to Mr McInerney, are virtually foolproof. This leads us to the conclusion that there has been no fault on the part of Mr McInerney or his staff resulting in the positive swabs returned by the two greyhounds but that he has, most likely, been let down by an error or omission on the part of an unidentifiable supplier. The Committee is satisfied that it is highly probable that contaminated meat was the cause of the two positive swabs. This was also accepted by the Informant.

[33] In arriving at penalty, the Committee gained considerable assistance from the decision of the Appeals Tribunal in the case of Lawrence (2015), to which we were referred by the Informant in her penalty submissions. In that case, it was likely that kibble from Australia fed to the three greyhounds had resulted in positive tests to morphine. The Judicial Committee at first instance imposed fines totalling $4,000. The fines were reduced on appeal to $2,000 ($1,000 on one breach and $500 on each of the other two breaches). In the circumstances of that case, the Appeals Tribunal stated that it “doubted that Mr Lawrence had been guilty of negligence and that it is difficult to characterise his conduct associated with the breaches as culpable”. The Committee considers that such statement could equally apply to the present case.

[34] The Appeals Tribunal in Lawrence went on to say that, in the circumstances, the penalty should emphasise the need for deterrence and denunciation (notwithstanding the absence of culpable conduct) and the need to maintain integrity and public confidence in greyhound racing.

[35] In the Payne (2015) case referred to in the Informant’s submissions, a case involving contaminated meat and three positives to Procaine and two greyhounds, the Appeals Tribunal followed the reasoning of the Tribunal in Lawrence in arriving at a $2,000 fine. The Tribunal in Payne found that there was “no difference” between the Lawrence and Payne cases and it proceeded accordingly.

[36] The facts of the Lawrence and Payne cases are quite similar to the present case and both are decisions of some authority.

[37] The sole aggravating factor is that Mr McInerney has breached the Prohibited Substance Rule on four previous occasions - (1997, 2001, 2010 and 2013). The first two breaches may be regarded as historical and we have not taken them into account. It is accepted by the Committee that Mr McInerney races a large number of greyhounds each season and, looked at in perspective, his record is a good one. Notwithstanding, we cannot overlook the two most recent breaches. In the past four seasons, we note, he has raced over 5,000 dogs in each of those seasons and will exceed 5,000 runners again this season. Of course, we also recognise that Mr McInerney has been one of the country’s most prominent and successful trainers of greyhounds for a number of seasons.

[38] We have not overlooked the Penalty Guide starting point of a $4,000 fine. In the Committee’s view that starting point needs to be increased to have regard to Mr McInerney’s record of two breaches since 2010. For that factor, we increase the starting point to $5,000. Mitigating factors are the Respondent’s early admission of the breach, his conduct during the course of the investigation, and his lack of culpability. The Informant did not challenge the integrity of the Respondent as a greyhound trainer. The Committee considers that a combination of those factors justifies a significant discount from the Penalty Guide starting point and, in this regard, a discount of $2,500 is appropriate. The breaches can be regarded as a single breach for the purposes of the Penalty Guide. That process brings us to a total fine of $2,500.

[39] The Committee is satisfied that a fine of $2,500 is sufficient to emphasise the need for deterrence and denunciation and to maintain integrity and public confidence in greyhound racing.

Penalty

[40] Taking all of the factors set out in our reasons above, the Committee considers that the appropriate penalty is a fine of $2,500 and the Respondent is fined the sum of $2,500 accordingly.

Disqualification of Greyhounds

[41] Rule 61.4 of the Rules of New Zealand Greyhound Racing Association 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.

[42] That requirement is mandatory.

[43] Accordingly the following orders are made:

(i) JOEY BAXTER (1st) is disqualified from Race 2, Southland & Otago Photo Finish, held at the Southland Greyhound Club’s meeting on 25th April 2017. As a consequence of the disqualification, the amended result for the race is as follows:

1st - Cawbourne Patty

2nd - Graeburn

3rd - Rib Curler

4th - Definite

(ii) WHEELCHAIR NORM (1st) is disqualified from Race 5, Added Energy Dash, held at the Southland Greyhound Racing Club’s meeting on 25th April 2017. As a consequence of the disqualification, the amended result for the race is as follows:

1st - Puma Pants

2nd - Sopoaga

3rd - Another Belle

4th - Homebush Sloan

It is ordered that the stakes paid to Mr McInerney be repaid to New Zealand Greyhound Racing Association and that stakes for the two races be redistributed and paid in accordance with the amended result.

Costs

[44] Mrs Williams did not seek costs on behalf of the Racing Integrity Unit and, as the hearing took place on a raceday, there will no order for costs in favour of the Judicial Control Authority.

[45] The Respondent is ordered to pay to the Racing Integrity Unit the sum of $2,042.00 being the costs associated with the B samples.

R G McKENZIE          S C CHING

Chairman                 Committee Member
 

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