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Non Raceday Inquiry RIU v R Famularo - Decision dated 15 September 2020 - Chair, Prof G Hall

Created on 18 September 2020

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

ANDY CRUICKSHANK Investigator, for the Racing Integrity Unit (RIU)

Informant

ROBERT FAMULARO

Owner and Breeder Standardbred Horses

Respondent

Information: No. A8712

Judicial Committee: Prof G Hall, Chairman

Mr S Ching, Member

Appearing: On the papers

DECISION OF JUDICIAL COMMITTEE

[1] Information A8712 alleges: “Between 1 October 2016 and 25 December 2016 at Christchurch [Mr Famularo] being a Breeder of Standardbred Horses, did breed three times from the same Harness Racing New Zealand (HRNZ) registered mare ANDRESS BLUE CHIP, in that season, two foals being born by way of embryo transfer and the other foal being foaled naturally by the said ANDRESS BLUE CHIP, in contravention of Breeding Regulation 17(1)(b) and therefore commits an offence against r 1002(1)(b) of the New Zealand Rules of Harness Racing and is subject to the penalty or penalties which may be imposed pursuant to r 1003 of the said Rules.”

[2] The Respondent admitted the breach and consented to the matter being dealt with on the papers.

[3] Rule 1002(1) provides:

Every person commits a breach of these Rules who

(b) acts in contravention of or fails to comply with any provision of these Rules or any Regulations made thereunder, or any notice, direction, instruction, restriction, requirement or condition given, made or imposed under these Rules.

[4] The Breeding Regulations – Part IV – Embryo Transfers provide:

16. Any person proposing to engage in artificial breeding by embryo transfer shall apply for authority to undertake breeding by embryo transfer.

17. It shall be a condition of any approval granted by the board that:

(a) more than one embryo may be transferred from each approved donor mare in each year but only one embryo from each mare shall be permitted to develop full term in each year;

(b) a donor mare from which a successful embryo transfer has been performed shall not be permitted to produce another foal by any other form of breeding in that season.

[5] The penalty provision is r 1003(1) which states:

A person who commits a breach of any Rule shall be liable to the following penalties:

(a) a fine not exceeding $10,000; and/or

(b) suspension from holding or obtaining a Licence for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months.

[6] There is an agreed summary of facts.

[7] Mr Robert Famularo is an owner and breeder of Standardbred race horses. He runs Dancingonmoonlight Farm and has been involved in Harness Racing his entire life. He is not currently licensed under the Rules of New Zealand Harness Racing.

[8] Mr Famularo is also the sole Director and a Shareholder of Dancingonmoonlight Limited which owns the standardbred mare ANDRESS BLUE CHIP.

[9] Mr Famularo has bred from ANDRESS BLUE CHIP each year from 2003. ANDRESS BLUE CHIP ‘slipped’ in 2006 but foaled every other year until 2013. She ‘missed’ at her first attempt at foal in 2013 with MACH THREE but was successful at her second attempt that year with the sire AMERICAN IDEAL.

[10] In 2014 ANDRESS BLUE CHIP produced a dead foal and she ‘missed’ in 2015 and 2016.

[11] In 2016 after repeated failures to get in foal and carry a foal Mr Famularo’s Veterinarian, Dr Andrew Bailey, recommended the mare for fertility treatment.

[12] As a result ANDRESS BLUE CHIP was flushed on 8 November 2016 and again on 24 November 2016. Two viable embryos which had been fertilised with chilled semen from the Stallion BETTORS DELIGHT were recovered.

[13] On 8 November 2016 the first embryo was inserted into a surrogate mare. The second embryo was inserted into another surrogate mare on 24 November 2016. These procedures were carried out by Dr Bailey at Wai Eyre Farm which is a neighbouring property.

[14] ANDRESS BLUE CHIP was served with semen from BETTORS DELIGHT on 2 and 4 December 2016 as a matter of process in case the other embryos did not take. She did not appear to respond well to the service and was not pregnancy tested.

[15] Both surrogate mares were checked by staff from Rangiora Vets approximately 8 days after the embryos were inserted and it was confirmed that they were both in foal. Dr Bailey advised that ethically he wasn’t prepared to abort either foal and he was not familiar with HRNZ Breeding Rules.

[16] In the autumn of 2017 ANDRESS BLUE CHIP suffered an airway obstruction and underwent surgery where she was placed under general anaesthetic. She was not pregnancy tested during this treatment.

[17] On 12 October 2017 the first embryo foal from a surrogate mare was foaled. This was a filly which was subsequently named and registered with HRNZ as GIRLS LOVE PEARLS.

[18] On 7 November 2017 the second embryo foal from a surrogate mare was foaled. This was a filly which was unnamed, unbranded and unregistered. Mr Famularo gave this foal away to a young lady from Dunedin.

[19] On 10 December 2017 ANDRESS BLUE CHIP foaled a colt. This foal which is unnamed, unbranded and unregistered remains on the Dancingonmoonlight Farm. It is proposed to be a riding pony for the Famularo family.

[20] RIU Investigators were advised anonymously that three BETTORS DELIGHT – ANDRESS BLUE CHIP foals had been foaled in the 2017 season.

[21] DNA records confirm that GIRLS LOVE PEARLS and the unnamed filly and colt all share the same DNA meaning that they have the same sire and dam (BETTORS DELIGHT and ANDRESS BLUE CHIP).

[22] An age test undertaken by Veterinarian Dr Jess Fuller confirmed that the unnamed colt, now gelding, had dentition consistent with him being 2 years of age, the same as that of GIRLS LOVE PEARLS.

[23] An age test undertaken by Veterinarian Dr Peter Gillespie confirmed that the unnamed filly had dentition consistent with her being 2 years of age, the same as that of GIRLS LOVE PEARLS.

[24] Mr Famularo was interviewed at his home on 17 December 2019.

[25] He admitted the facts as outlined and stated that he was only ever trying to get a foal with BETTORS DELIGHT – ANDRESS BLUE CHIP breeding. He stated that he had no intention of breaching any HRNZ Rules. Mr Famularo advised that he had not read the Rules but believed that only one foal could be registered.

[26] When advised of the possible consequences of breeders breeding three times and selecting the foal of choice, Mr Famularo stated that he understood the potential issues. After reviewing the relevant Rules, Mr Famularo advised that it was his understanding that more than one pregnancy was permitted and the offence only occurred when the foal ‘landed on the ground’.

[27] Mr Famularo has been involved with Harness Racing as an owner and breeder for all of his adult life. He has no previous HRNZ Rule breaches.

Informant’s penalty submissions

[28] The RIU submitted that the breach could be dealt with by way of monetary penalty and sought a fine of $2,000.

[29] The Informant referred to RIU v Siemelink (31 October 2016). This matter involved breeding twice from the same mare in a season. Once via surrogate mare and the other via the mare herself. A fine of $400 plus JCA costs was imposed.

[30] The RIU identified a number of mitigating factors:

There was no intent by Mr Famularo to defeat HRNZ Rules.

Mr Famularo was only interested obtaining a BETTORS DELIGHT – ANDRESS BLUE CHIP foal.

Mr Famularo consulted with the appropriate veterinarian professionals.

The first foal born was the only horse registered with HRNZ.

Mr Famularo gave the second filly born away as a riding pony. The third foal was a colt foal, now gelded and remains on Mr Famularo’s property also as a pony.

Mr Famularo has co-operated fully with Investigators and has pleaded guilty at the earliest opportunity.

[31] The RIU identified no aggravating factors.

[32] The RIU considered this case to be more serious than Siemelink as breeding had occurred three times.

[33] Mr Famularo had no previous Rule breaches.

[34] The RIU did not seek costs.

Informant’s supplementary penalty submissions

[35] The Informant provided supplementary penalty submissions addressing issues the RIU had identified with HRNZ Breeding Regulations regarding embryo transfer.

[36] The breeder is liable whenever more than one foal is bred from the same mare in a season.

[37] The breeder however is entirely reliant on the specialist advice of their veterinarian who has animal welfare and treatment as their primary consideration.

[38] Veterinarians are also required to be familiar with and adhere to the relevant Rules of Racing. This can lead to a moral and ethical conflict between the best animal welfare treatment and advice and the Rules.

[39] The leading specialist in terms of embryo transfer in New Zealand is Dr Lee Morris. Dr Morris is a Director and Shareholder of Equibreed NZ Limited.

[40] Dr Morris advises that the best and most effective way to treat infertility in a mare is for her to get in foal, carry the foal to term and then birth it. She advises that a healthy uterus is a pregnant uterus.

[41] If an infertile mare is able to get in foal and carry the foal to term it has the effect of repairing the uterus. The mare is therefore healthier in terms of welfare and more likely to get in foal in future seasons.

[42] This was the case with the mare ZENOLA STAR owned by Mr Siemelink, the only other person prosecuted under the Rules for breeding twice from the same mare in a season.

[43] In that case an embryo was transferred into a surrogate mare and as part of her infertility treatment ZENOLA STAR was also inseminated with stallion semen.

[44] The surrogate mare produced the first of the foals which was subsequently registered with HRNZ.

[45] Approximately one month later ZENOLA STAR also birthed a foal which was later given away. ZENOLA STAR was then bred from naturally for the next four seasons but died shortly after her last foal was born in 2015.

[46] In that case Dr Morris’ advice and subsequent infertility treatment was of benefit to ZENOLA STAR in terms of repairing her uterus and improving her welfare.

[47] In the present case in the two seasons since the three foals were born ANDRESS BLUE CHIP missed in 2018 and her foal died in 2019.

[48] As previously stated there is some dichotomy between animal welfare protocols that veterinarians are required to follow in terms of the best animal welfare treatment for the mares involved and HRNZ Breeding Regulations.

[49] It follows and was raised by both Respondents (Mr Siemelink and Mr Famularo) that a breach of the Rule occurs only when the second foal ‘hits the ground’. In other words there is no breach by having multiple surrogate mares in foal provided only one is born.

[50] Mr Siemelink, who took expert advice from Dr Morris and was only interested in treating the infertility of ZENOLA STAR, stated “What was I supposed to do – knock it on the head?”, when referring to the second foal born.

[51] Similarly Mr Famularo stated “Should I have shot them?” when referring to the two foals born after the first surrogate mare foaled.

[52] Such action would attract the horror and consternation of the industry and wider public.

[53] In addition to the points raised above, the two veterinarians involved in these cases Dr Morris (ZENOLA STAR) and Dr Andrew Bailey (ANDRESS BLUE CHIP) raised moral and ethical considerations regarding aborting foetuses.

[54] In the case of Mr Siemelink, he had the dilemma that ZENOLA STAR had a history of losing pregnancies, was interested in treating her infertility, and so delayed the decision to abort knowing it was in the best interests of his mare. Had he chosen to abort the pregnancy then there is the moral and ethical decision for Dr Morris in terms of the age of the foetus and up to what point is it appropriate to terminate a pregnancy.

[55] In Mr Famularo’s case, he was unaware that ANDRESS BLUE CHIP was in foal until approximately one month prior to foaling. As outlined in the summary of facts, the mare underwent a surgical procedure which would not have been performed had it been known she was in foal.

[56] There are ethical and moral considerations had Mr Famularo asked Dr Bailey to abort the foetus at approximately 10 months gestation. Had Dr Bailey undertaken such a procedure, if it were possible, which he advised he would not have, what impact would that procedure have had on the mare in terms of animal welfare?

[57] It is acknowledged that breaches of the Breeding Regulation have the potential to seriously undermine the integrity of the Standardbred industry. Particularly if breeders are deliberately breeding multiple times and selecting the best foal to register after birth. 

[58] In the two cases referred to however, there has been no attempt to circumvent the Rules. Rather there has been a genuine animal welfare concern for the breeding mares involved.

[59] The RIU ask the Committee to consider these points and make recommendations or provide guidance to the industry as to how the animal welfare and embryo transfer considerations can cohabitate or determine whether Rule changes or amendments are necessary.

[60] In particular the RIU ask the Committee to consider the following:

If and when does the animal welfare concern or treatment for the breeding mare take precedence over this Breeding Regulation?

Given the moral and ethical dilemma facing veterinarians up to what stage in foetal development is it appropriate to abort a pregnancy?

In the case of multiple births, when it can be shown that there has been no attempt to breed and select the best foal, should it be permissible for all but the first born foal to be given away? In other words only the first born foal can be registered. If so, what notification processes would be required in terms of advising HRNZ.

[61] There is no information about whether or to what extent this may already be occurring as the RIU are only aware of these two cases which have been brought to its attention.

[62] Given these dilemmas should embryo transfer be permitted under the Rules? If not, would this deplete NZ breeding stock to such an extent that it seriously damages the NZ Standardbred breeding industry?

Respondent’s penalty submissions

[63] Mr Famularo presented a succinct written submission in which he stated he believed the $2,000 penalty sought by the Informant was “manifestly severe” when compared with the $400 fine in Siemelink. He emphasised that he had not destroyed the two unregistered foals, that he was not breeding to be selective, and that his intention was to produce only a live foal.

[64] Mr Famularo stated he believed if he only registered one foal, he was acting within the Rules. He now recognised that this was not correct.

[65] Significantly, Mr Famularo questioned whether the Rule was working the way it should. His understanding was that had he subsequently destroyed the in foal mares, then he would not have breached the Rules. Consequently, he posed the question whether in terms of animal rights, had the Rule “missed its mark.”

[66] Mr Famularo did not wish to respond to the Informant’s supplementary submissions.

Committee issues a Minute

[67] The Respondent’s submission and the Informant’s supplementary submissions raise a number of difficult ethical issues. We doubted that these issues were unique to New Zealand and we directed that the Informant make inquiries as to the practice in other jurisdictions and, in particular, the various states in Australia. We required Mr Cruickshank to consider both the nature of the Rules that apply to embryo transfer and the level of the penalties that have been imposed for their breach.

[68] We received a notification from the Informant on 2 September which stated that the General Manager, Integrity at Harness Racing Victoria had not responded to his inquiries and the Integrity Manager from NSW Harness Racing had not been able to assist.

[69] With respect to penalty, Mr Cruickshank stated that unfortunately he had no data in terms of penalties for similar type offending and could not advise if anyone in Australia had been charged with this type of offence. He expressed the view that the problem was either not widespread or not well known by the authorities.

Decision

[70] The facts are straight forward. Three foals with the breeding BETTORS DELIGHT - ANDRESS BLUE CHIP hit the ground in the same breeding season. This was due to the fact that two surrogate mares were inseminated and the mare ANDRESS BLUE CHIP, herself, was also inseminated.

[71] The first foal born was the only horse registered with HRNZ. Mr Famularo gave the second filly born away as a riding pony. The third foal was a colt foal, now gelded, and remains on Mr Famularo’s property also as a pony.

[72] Mr Famularo took these steps because ANDRESS BLUE CHIP had ‘slipped’ foals in two earlier breeding seasons and had failed to get in foal in another. While Mr Famularo was aware the two surrogates were pregnant, he was not aware that this was the case with ANDRESS BLUE CHIP. The fact that ANDRESS BLUE CHIP was subjected to an invasive medical procedure when well in foal gives weight to Mr Famularo’s claim.

[73] The difficulty that the Breeding Regulations only appear to be breached when more than one live foal is on the ground raises animal welfare issues in that in both Siemelink and this case, the Respondents have raised as a mitigating factor the fact that they did not destroy either the foal(s) or the surrogate mare.

[74] There is only one precedent, RIU v Siemelink (31 October 2016) where the penalty was a fine of $400. The Committee in that case described the case as the first under the relevant Rule. We have tried, but to no avail, to obtain assistance from both the practice and decisions in comparable jurisdictions.

[75] The mitigating factors with respect to the breach in Siemelink were identified as being: there was no intent to defeat HRNZ Rules; Mr Siemelink was only interested in treating the infertility of his breeding mare; only one horse was registered, with the unnamed filly being given away with clear instructions that it could never be registered; and Mr Siemelink consulted with the appropriate veterinarian professionals.

[76] Mitigating factors in the case before us are: there was no intention by Mr Famularo to defeat HRNZ Rules; he was only interested obtaining a BETTORS DELIGHT – ANDRESS BLUE CHIP foal; he had consulted with the appropriate veterinarian professionals; he has been open about what happened; the events are now historical in that the foals were born in 2016; and only one horse was registered with HRNZ, with the other two being used as riding ponies.

[77] Personal mitigating factors are that Mr Famularo has co-operated fully with the RIU investigators, has no previous Rule breaches, and has admitted the breach at the earliest opportunity.

[78] We emphasise a number of matters. The events in Siemelink were also historical but two identically bred foals were involved in that case while Mr Famularo has bred three such foals in the one season. While Mr Famularo had no intention to breach the Rules or the relevant Regulations, the obligation upon any person involved in the Harness Industry and, in this case upon the Respondent as a licensed breeder, is to be fully acquainted with the Breeding Regulations. He was not. Nor as it transpired, was his veterinarian, Mr Bailey. This obligation is more especially acute where the actions contemplated (two embryo transfers and service of the donor mare) are not as we understand it, the norm within the industry. That said, we emphasise we impose penalty on the basis the this was not an intentional breach of the Regulations by Mr Famularo.

[79] Nevertheless, his actions can be seen to be somewhat cavalier in regard to his responsibilities under the Breeding Regulations. It was most unwise to have three mares inseminated in the one year. The outcome of three foals, if not predictable, was certainly not outside the realms of possibility; two foals could certainly be viewed as being predictable in the circumstances. We note the Respondent is charged only with respect to reg 17(b) in that he permitted a donor mare (ANDRESS BLUE CHIP) from which a successful embryo transfer had been performed to produce another foal in that season.

[80] We believe the integrity of Harness Racing and, in particular, the breeding industry, require a penalty substantially above the level of the fine in Siemelink. We note the mitigating factors in that case, which clearly influenced the Committee, a number of which, as we have observed, are also present in this case, but we are of the view that the lenient penalty in Siemelink was imposed in circumstances where it was the first known breach of the Regulation. We also observe that the Informant in that case submitted to the Committee that the breach was at “the lowest end of the spectrum”.

[81] The animal welfare considerations involved in a breach of the Breeding Regulations are relevant. We note the submission in this regard that there is a dichotomy with the current state of the Regulations in that a breeder could (and might be better to) abort a foetus or destroy a surrogate mare in order to remain within the Rules. We address the current state of the Regulations below.

[82] A monetary penalty is appropriate in this case. The Informant has not sought suspension or disqualification, although these penalties are available for the breach. In the Committee’s view, the figure sought by the Informant is appropriate having regard to gravity of the breach, the culpability of the Respondent and the personal mitigating factors.

[83] Giving Mr Famularo credit for his excellent record, his openness with HRNZ and his early admission of the breach, we believe a fine of $2,000 is appropriate.

[84] We add. Breeders must make every effort to be aware of their obligations under the Rules and Regulations. This is a given. This is the second such case before the JCA. Each has been dealt with by way of a monetary penalty, with a significantly higher quantum being imposed on this occasion to mark what in this Committee’s view are the significant animal welfare concerns that underpin the Breeding Regulations. That said, we emphasise that we accept that Mr Famularo acted responsibly with respect to the progeny that resulted from the breach.

[85] The point we are making is that Respondents in the future cannot expect to continue to be able to plead ignorance of the Rules or Regulations and, by so doing, to receive a significant sentencing discount.

[86] We note the issues raised at the end of the Informant’s supplementary submissions. They were not further addressed by either party.

[87] Despite the invitation by the RIU for us to address these ethical issues, it our view that the function of this Judicial Committee is to determine simply the matter before us and that is to impose the appropriate penalty on Mr Famularo. In so doing, it is not our intention to downplay the importance of these matters (our view is in fact quite the reverse) but rather we believe these are matters for the Code itself to address.

[88] Mr Famularo is ordered pay a fine in the sum of $2,000.

Costs

[89] The matter has been heard on the papers. There is no award of costs in favour of the RIU or the JCA.

Dated at Dunedin this 15th day of September 2020.

Geoff Hall, Chairman

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