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Non Raceday Inquiry RIU v R H Adcock - Penalty Decision dated 27 April 2017 - Chair, Mr R G McKenzie

Created on 01 May 2017

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

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

IN THE MATTER of Information No. A6654

BETWEEN PETER ROSS LAMB, Racing Investigator for the Racing Integrity Unit

Informant

AND RAYMOND HAROLD ADCOCK of Dunsandel, Licensed Trainer

Respondent

Judicial Committee: R G McKenzie (Chair) - S C Ching (Committee Member)

Present: Mr P R Lamb (the Informant)

Mr R H Adcock (the Respondent)

Mr S P Renault (Registrar)

Date of Hearing: 15 April 2017

Venue: Addington Raceway, Christchurch

Date of Decision: 27 April 2017

PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A6654 alleges that the Respondent, Raymond Harold Adcock, a Licensed Trainer under the Greyhound Racing New Zealand Rules of Racing, committed a breach of Rules 86.1 and 86.3 of those Rules in that, being the registered trainer of the greyhound, MR. MARINE, he presented the greyhound to race in Race 10, the Kolorful Kanvas Sprint, at the Christchurch Greyhound Racing Club meeting at Addington Raceway on 3rd March 2017 with a prohibited substance, namely, Salbutamol in its system.

[2] Mr Lamb produced a letter dated 24th March 2017 and signed by Mr M R Godber, General Manager of the Racing Integrity Unit, consenting to the filing of the information pursuant to Rule 91.2 (a).

The Plea

[3] The information was served on Mr Adcock on 29th March 2017. He signed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule.

[4] Mr Adcock was present at the hearing of the information. After the charge and Rule were read to him, he confirmed that he admitted the breach of the Rule.

[5] The charge was found proved accordingly.

The Rule

[6] Rule 86 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 Substance.

86.3 Without limiting any of the provisions of these Rules, the Owner or Trainer or the 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

The Facts

[7] Mr Lamb presented the following Summary of Facts:

The Respondent, Raymond Harold Adcock, is a Licensed Trainer under the Rules of the New Zealand Greyhound Racing Association.

On the 3rd March 2017, MR. MARINE was correctly entered and presented to race by Mr Adcock in Race 10 at the Christchurch Greyhound Racing Club meeting at Addington Raceway.

MR. MARINE finished second in the race winning a stake of $600 which was paid to Mr Adcock, who is the owner of the greyhound.

Following the race, the greyhound was routinely swabbed in the presence of Mr Adcock and he does not wish to contest the swabbing procedure.

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.

On the 21st March 2017, the Official Racing Analyst reported in writing that the sample from MR. MARINE had tested positive to Salbutamol.

Salbutamol is a prohibited substance within the meaning of the Rules and its presence in a race day sample is, prima facia, a breach of the Rules. Salbutamol is classed as a Category 5 Prohibited substance that has the ability to improve or impact the performance of a greyhound.

Mr Adcock was interviewed at his property in Dunsandel on 22nd March 2017. He was very co-operative and when informed of the nature of the positive test, he advised that he had been treating the greyhound MR. MARINE with a substance for a post-race cough for a considerable period of time.

Subsequent enquiries found that the treatment substance was Salbutamol Sulphate. It is a human prescription medicine, administered to a greyhound via an adapted nebuliser.

By way of explanation for this breach of the Rules, Mr Adcock suggested that he either miscalculated the withholding time of the Salbutamol treatment or that there was contamination from previous use of the uncleaned nebuliser machine.

Mr Adcock advised that he did not wish to have the reserve sample from the swab tested.

Mr Adcock has held a Greyhound Trainer’s Licence for more than 35 years and acknowledges that he has one prior breach of this Rule, believed to be in the early 1980’s.

An order is sought for the disqualification of MR. MARINE under Rule 86.4 and the refund of the stake money.

[8] Mr Adcock, when asked by the Committee, stated that he agreed with the above Summary of Facts.

[9] Mr Lamb produced a report by Dr M L Jansen BVSc, Veterinary Advisor to GRNZ, explaining Salbutamol and its effects:

Technically, Salbutamol is a short acting B2 adrenergic receptor agonist which acts by causing the smooth muscle of medium and large airways in the lungs to relax thereby causing dilation or expansion of these airways. It is used primarily for the treatment of asthma in human patients. It is excreted mainly in the urine and can take up to 72 hours for complete elimination although the majority is excreted within 24 hours. It is commonly available in New Zealand as Ventolin Inhalers. As it is not a registered Veterinary Medicine it would come under Category 5 – other drugs and substances capable of affecting a greyhound’s performance, not included in Categories 1, 2, 3 or 4. There is some evidence in humans that Salbutamol can improve performance in endurance exercise even in people without asthma.

Penalty Submissions of the Informant

[10] Mr Lamb presented the following submissions in relation to penalty:

1. Mr ADCOCK has pleaded guilty to a breach of Rules 86.1 and 86.3 after presenting the Greyhound, MR. MARINE to race with a prohibited substance in its system, namely Salbutamol, at the Christchurch GRC race meeting on 3rd March 2017.

2. The penalty provisions that apply in this case are outlined in Rule 88.1:

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 greyhound. Rule 86.4 states:

86.4 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 reflect the disapproval of the Judicial Control Authority 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

The Greyhound Racing New Zealand 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 1st September 2014. Salbutamol is classed as a Category 5 Prohibited Substance and the recommended starting point is a 3-month disqualification and/or a fine of $4000.

The following three cases involving Category 5 Prohibited substances since the new Regulations are referred to:

RIU v TA Agent - January 2015

Subject: Procaine with one Greyhound (Category 5; 3 months’ disqualification and/or $4000) Penalty imposed $3000, greyhound disqualified - administered as penicillin.

RIU v B G Mitchell - April 2016

Subject: Greyhound positive to the anti-inflammatory Ibuprofen administered through the ‘human’ product ‘Brufen’ Ibuprofen tablets. (Category 5; 3 months’ disqualification and/or $4000) Penalty imposed $3000, greyhound disqualified.

RIU v R K Roper – March 2017

Subject: 2 x Greyhound positives to anti-inflammatory Ibuprofen. (Category 5; 3 months’ disqualification and/or $4000) Penalty imposed $3000, greyhound disqualified.

6. Aggravating Features:

Mr Adcock was aware that Salbutamol is a Prohibited Substance and it had a 72-hour withholding period. He was culpable of low level negligence in that he either:

(a) failed to take any suitable precautions to adhere to the withholding time for Salbutamol or;

(b) failed to maintain the equipment he was using to administer Salbutamol to the greyhound, in a state that prevented any contamination to be inadvertently administered to the greyhound, therefore causing this situation to occur.

7. Mitigating Factors -

There was no obvious malicious intent. This is a case of negligence.

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

Mr Adcock has been involved with greyhounds since at least 1980 and licenced as a trainer since 1981. His overall contribution to greyhound racing in New Zealand is of a significant and positive nature.

Mr Adcock has one previous historical breach of this Rule, that being in 1982.

8. Conclusions:

The Racing Integrity Unit acknowledges that the starting point for a monetary penalty is a fine of $4000.

Mr Adcock has conducted himself well during this inquiry, being open and honest and has admitted the breach at the earliest possible opportunity. Credit needs to be given for that.

Based on the mitigating and aggravating factors and the overall circumstances considered in this case, the RIU invites the Committee to impose a monetary fine with a starting point of $4000.

An order is sought for the disqualification of the greyhound, MR. MARINE, from 2nd place in Race 10, the Kolorful Kanvas Sprint at the Christchurch Greyhound Racing Club meeting on 3rd March 2017.

An order is also sought for the refund of the stake money won in that race, being $600.

Submissions of the Respondent

[11] Mr Adcock was prepared to admit, and did admit, that MR. MARINE had raced with a prohibited substance in its system, but added that he had not administered any substance to the dog to improve its performance. His primary concern had been for the welfare of the dog.

[12] When Mr Lamb had called at his property and informed him of the positive to Salbutamol by MR. MARINE, he immediately knew what had happened.

[13] Mr Adcock said that MR. MARINE, very early in its racing career after a number of runs, had suffered from a “dry cough”. He turned the dog out for a spell and it resumed racing in January 2016, but it was still suffering from coughing.

[14] He consulted his Veterinarian, which he only does when his is “desperate”. It was immediately diagnosed that a nebuliser was required. He purchased a reconditioned nebuliser from the Asthma Society.

[15] He subsequently purchased, on his Veterinarian’s advice, five vials of Salbutamol Sulphate from Shirley Veterinary Centre. He acknowledged that he was warned that using the substance may result in a positive swab and to take care in using it.

[16] He decided to only use it post-race and to use water leading up to the race. The dog would have been treated with water via the nebuliser almost every day (at least four times a week) since then, and it had made a difference to the dog. It has had 33 starts in the subsequent 12 months.

[17] MR. MARINE raced at Invercargill on 21st February 2017 and, at some stage between that date and the race on 3rd March at Addington, the last vial of the Salbutamol Sulphate was used. Mr Adcock could not remember exactly when.

[18] MR. MARINE was swabbed on 3rd March 2017. Mr Adcock was informed of the positive swab on 21st March. He said he had been using only water in the nebuliser for all of the period in between 21st February and 3rd March. The dog subsequently tested clear. However, up until the time of the second swab, the dog had been treated with 5 mls of water every day.

[19] He felt that he had, perhaps, been negligent in not properly cleaning the nebuliser equipment after the Salbutamol had been used in it after the dog’s race at Invercargill. He always took extreme care to ensure such things did not happen and, for that reason, he seldom used drugs.

[20] The greyhound had been post-race swabbed on five occasions since treatment with the nebuliser began, including at Invercargill on 21 February 2017.

[21] Mr Adcock expressed some amazement that he had been using the same treatment on the greyhound for 12 months without any problem and that a positive swab was returned by it on 3rd March 2017.

Penalty Decision

[22] The penalty Rule is Rule 88.1. It is set out in paragraph 2 of the Informant’s penalty submissions above.

[23] 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, Salbutamol, 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 a disqualification.

[24] In looking at the facts of the charge, the Committee considers it likely that the positive test returned by Mr Adcock’s greyhound, MR. MARINE, was the result of its inadvertently ingesting the prohibited substance by means of the nebuliser, with which it was regularly treated, being somehow contaminated, perhaps by a residual amount of the substance being left in the nebuliser, despite its being cleaned, following a treatment with the Salbutamol. This, of course, should not have happened and, if this was the cause, then either Mr Adcock or his staff have been negligent. The Informant advanced this as an aggravating factor and we agree. We regard this factor as warranting an uplift in the starting point which uplift we fix at $1,000.

[25] It is appropriate to give Mr Adcock a discount for certain mitigating factors. These are his frank admission of the breach and his cooperation during the course of the inquiry. The Committee was also impressed by Mr Adcock’s frankness and remorse at the hearing. We note that Mr Adcock has a previous breach against his record in 1982, but we attach no weight to that, given that it was 35 years ago. The Committee also takes judicial notice of the fact that Mr Adcock enjoys almost legendary status in the greyhound racing industry and is extremely well-respected. We have assessed the appropriate discount for those factors at $2,000.

[26] The Committee is satisfied that a fine of $3,000 will suffice to satisfy the general purposes of sentencing which are well-established – to hold the offender accountable for his actions, to promote in the offender a sense of responsibility, to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence. The Committee has also had regard, as always, to the need to maintain integrity and public confidence in Greyhound Racing.

Penalty

[27] Mr Adcock is fined the sum of $3,000.

Disqualification of Greyhound

[28] Pursuant to Rule 86.4, MR. MARINE is disqualified from Race 10 at the meeting of Christchurch Greyhound Racing Club held at Addington Raceway on 3rd March 2017. Consequent upon the disqualification, the amended result for the race is as follows:

1st Barcia Express
2nd Wow Madonna
3rd Ohoka Billy
4th Fliberty Jiberty

It is ordered that the stake of $600 paid to Mr Adcock be returned by him to Greyhound Racing New Zealand.

Costs

[29] The Informant did not seek an order for costs and, since the hearing took place on a raceday, there will be no order for costs in favour of the Judicial Control Authority.

R G McKENZIE

Chair 

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