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Non Raceday Inquiry RIU v S M Evans and B H Evans - Reserved Penalty Decision dated 24 May 2017 - Chair, Mr R G McKenzie

Created on 25 May 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. A5043, A5044 and A5045

BETWEEN KYLIE ROCHELLE WILLIAMS

Racing Investigator for the Racing Integrity Unit

Informant

AND STEPHEN MARK EVANS and BONNIE HINEMANU EVANS of Leeston, Licensed Public Trainers

Respondents

Judicial Committee: Mr R G McKenzie, Chairman - Mr D J Anderson, Committee Member

Present: Mrs K R Williams, the Informant

Mr S M & Mrs B H Evans, the Respondents

Mr S P Renault, Registrar

Date of Hearing: 19 May 2017

Date of Decision: 24 May 2017

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

The Charges

[1] Three informations have been filed by Racing Investigator, Mrs K R Williams, against the Respondents as follows:

(1) Information No. A5043 alleges that, on the 28th February 2017, being the registered trainers of the greyhound, ULTRA ACTION, they presented the greyhound to race in Race 15, the Protexin Dash, at the Christchurch Greyhound Racing Club meeting with a prohibited substance, namely Flunixin, in its system;

(2) Information No. A5044 alleges that, on the 16th March 2017, being the registered trainers of the greyhound, GOLDSTAR SCOOTER, they presented the greyhound to race in Race 1, The Fitz Sports Bar Sprint, at the Christchurch Greyhound Racing Club meeting with a prohibited substance, namely Procaine, in its system; and

(3) Information No. A5045 alleges that, on the 17th March 2017, being the registered trainers of the greyhound, GOLDSTAR JAGGER, they presented the greyhound to race in Race 9, NZ Racing Series Distance Final, at the Wanganui Greyhound Racing Club meeting with a prohibited substance, namely Procaine, in its system;

[2] Each of the three charges is in breach of Rule 86.1 and 86.3 of the Greyhound Racing New Zealand Rules of Racing.

[3] Mrs Williams produced a letter dated 10th May 2017 from Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the filing of the informations pursuant to Rule 91.2 a.

[4] The informations were served on the Respondents on 12th May 2017. Both Respondents completed the Statement by the Respondent on the information forms indicating that they admitted the breaches of the Rule.

[5] Mr & Mrs Evans were both present at the hearing of the information and, following the reading of the charges and Rules to them, they confirmed that they admitted all charges.

[6] The charges were found proved accordingly.

Facts

[7] Mrs Williams presented the following summary of facts:

1. The Respondents, Stephen Mark Evans and Bonnie Hinemanu Evans are licensed Public Trainers, training in partnership, under the Rules of the New Zealand Greyhound Racing Association.

2. On the 28th February 2017, ULTRA ACTION was correctly entered and presented to race by Mr and Mrs Evans in Race 15, the Protexin Dash, at the Christchurch Greyhound Racing Club meeting at Addington Raceway.

3. ULTRA ACTION finished first in the race winning a stake of $720 which was paid to the trainers. ULTRA ACTION is owned by Tim Caines.

4. Following the race the greyhound was routinely swabbed, swab number 112610, in the presence of Mr Evans and he does not contest the swabbing process.

5. 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.

6. On the 16th March 2017, GOLDSTAR SCOOTER was correctly entered and presented to race by Mr and Mrs Evans in Race 1, The Fitz Sports Bar Sprint, at the Christchurch Greyhound Racing Club meeting at Addington Raceway.

7. GOLDSTAR SCOOTER finished first in the race winning a stake of $840 which was paid to the trainers. GOLDSTAR SCOOTER is owned by the Respondents.

8. Following the race the greyhound was routinely swabbed, swab number 112645, in the presence of Mrs Evans and she does not contest the swabbing process.

9. 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.

10. On the 17th March 2017 GOLDSTAR JAGGER was correctly entered and presented to race by Mr and Mrs Evans in Race 9, the NZ Racing Series Distance Final, at the Wanganui Greyhound Racing Club meeting at Hatrick Raceway.

11. GOLDSTAR JAGGER finished third in the race winning a stake of $750 which was paid to the trainers. GOLDSTAR JAGGER is owned by the Respondents.

12. Following the race, the Greyhound was routinely swabbed in the presence of Mr Evans and he does not contest the swabbing process.

13. All samples from the meetings 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.

14. On the 15th of March 2017, the New Zealand Racing Laboratory reported in writing that the sample from ULTRA ACTION - 112610, had tested positive to Flunixin.

15. Flunixin 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. Flunixin is classed as a Category 5 Prohibited Substance that has the ability to improve or impact the performance of a greyhound. Flunixin is a potent painkiller, anti-inflammatory and anti-pyretic (temperature reducing) drug known as Non-Steroidal Anti-Inflammatory Drugs. This is confirmed by GRNZ Veterinary Advisor, Dr M L Jansen. Dr Jansen also confirmed that the use of Flunixin in animals by "intramuscular or subcutaneous injection the withholding time could be considerably longer and could potentially result in residues in meat used for pet food. In the case of racing greyhounds this could potentially give rise to a positive urine test."

16. Mr Evans was interviewed at his property in Leeston on the 20th of March 2017 and was very cooperative and gave the RIU full access to the property.

17. Mr Evans advised he did not want the reserve sample from the swab tested.

18. Four Samples were taken from the feed area and forwarded to the New Zealand Racing Laboratory for testing.

19. Mr Evans advised that he had never heard of Flunixin and none was found on his property.

20. The New Zealand Racing Laboratory advised on 31st March 2017 that Procaine was detected in the urines samples taken from GOLDSTAR SCOOTER - 112645 and GOLDSTAR JAGGER - 114696.

21. Procaine 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. Procaine is classed as a Category 5 Prohibited Substance that is used primarily as a local anaesthetic and is capable of affecting both the central nervous system and the cardiovascular system.

22. Mr and Mrs Evans were both advised of the positive samples on 3 April 2017 and urine samples were taken from both GOLDSTAR SCOOTER and GOLDSTAR JAGGER.

23. Enquiries were made with Mr Evans’ Vets and they confirm that they had never treated or prescribed any of Mr Evans’ greyhounds Flunixin or Procaine. They advised that both drugs are used on large animals and would not be used on greyhounds with other more suitable drugs available.

24. Queries were made with the Evans' meat supplier in conjunction with MPI and although no records were found of meat that had been treated with Flunixin or Procaine this could not be ruled out as the source of the positives as they are permitted to take animals that had been treated. While the supplier was aware of the potential for positive swabs from contaminated meat, they are reliant on farmers, owners and trainers of animals to advise if any cattle beast or horse has been treated. Mr Evans had been using the meat supplier for three years and had a standing order to pick up 11 boxes of meat each week that is packaged specifically for his greyhounds. He has now changed meat supplier.

25. The Laboratory advised on 3 May 2017 that the samples taken from his property and of the two urine samples taken from GOLDSTAR SCOOTER and GOLDSTAR JAGGER were negative.

26. Mr Evans has been involved in the racing industry for over 30 years in both Harness Racing and Greyhound Racing.

27. Mr and Mrs Evans have been training in partnership since 2014.

28. Mr and Mrs Evans have not had a previous breach of this rule.

Penalty Submissions of the Informant

[8] Mrs Williams presented the following penalty submissions:

1. Mr and Mrs Evans have pleaded guilty to a breach of Rules 86.1 and 86.3 after presenting three greyhounds with prohibited substances in their systems – namely, ULTRA ACTION - Flunixin - Christchurch GRC - 28 February 2017, GOLDSTAR SCOOTER - Procaine - Christchurch GRC- 16 March 2017 and - GOLDSTAR JAGGER - Procaine - Wanganui GRC - 17 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(l) 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 states:

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 JCA 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.

RIU 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 charges) 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 T A Agent - 24 December 2014

Subject: Procaine - positive with one greyhound - knowingly administered Procaine and raced within withholding time - fined $3000 and the dog was disqualified.

RIU v D Stapleton - 22 October 2015

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

RIU v A Neal and L Neal -7 May 2015

Subject: Flunixin - positive with one horse - had been treating the horse - fined $5,500, horse disqualified.

RIU 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.

The appeal decision 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:

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 —

There are no aggravating features other than the return of the three positive swabs to two different drugs.

7. Mitigating Factors —

Although these positives involve two different drugs it is believed that the source was from the same company that supplied the pet food. MPI made enquiries at the request of the RIU and advised:

"I have checked the supplier statements for [the pet food supplier] and there is the occasional animal that has been treated. In some cases, the withholding period that has been entered on the declaration is not correct. They were not during periods associated with the dates that you previously advised. The testing methods used may be very sensitive and there is the possibility that cross-contamination could potentially occur. As discussed previously, it is not illegal for pet food operators to utilise animals that are still within the withholding period and it is possible that this could potentially contaminate other meat. There is no residue testing of pet food that I am aware of so possibly the best option for greyhound trainers is to use only human consumption product if they are concerned about the possible transfer of residues from the feed. However, I realise that may not be practical."

There was no malicious intent, the dogs had not been treated in any way and the two drugs involved are used on large animals not greyhounds.

Mr and Mrs Evans maintain a very professional kennel that is of the highest standard.

Mr and Mrs Evans admitted the breach at the first opportunity and have co-operated fully throughout the investigation.

8. Conclusion —

The Racing Integrity Unit seeks a monetary penalty of a fine of $2,000 - $3,000.

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. Flunixin and Procaine are both classed as a Category 5 Prohibited Substances 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 $2,000 to $3,000 is appropriate.

Credit has to be given for the manner in which both Mr and Mrs Evans have conducted themselves during this inquiry and admitting the breach at the first opportunity.

We also seek the disqualification of ULTRA ACTION, GOLDSTAR SCOOTER and GOLDSTAR JAGGER under Rule 86.4 and the refund of the winning stakes.

9. The RIU are not seeking to recover any costs in this matter.

Submissions of the Respondents

[9] Mr Evans stressed to the Committee that the two prohibited substances involved were both ones that were used on large animals and not on greyhounds – see [7] 23 above. The only time that a greyhound would be administered Procaine would be post-operation and, in the case of Flunixin, on down cows, he said. He submitted that the two prohibited substances had come from the meat supply.

[10] Mrs Evans stated that they understood that Flunixin had a 63-day withholding period for horses – a “huge amount of time”, she suggested.

[11] The meat was a mixture of horsemeat and beef, Mr Evans said. They had been purchasing it from their supplier for over 3 years, lately eleven boxes a week, without any problems until now. That supplier could not tell them where the meat had come from and he denied any responsibility. Another trainer had been using meat from the same supplier at the same time, but did not have any greyhounds swabbed during the relevant period of approximately three weeks. The three Evans’ greyhounds had been eating meat from the same boxes.

[12] Mr Evans told the Committee that he had trained standardbreds for 20 years with no drug breaches. He had been training greyhounds in partnership with his wife for the last six years. They have had approximately 5,000 starters for almost 500 wins. Likewise, they have a clear record in the greyhound code.

[13] He and his wife were approximately $3,700 out-of-pocket for stakes refunded and the costs of the trip to Wanganui to race GOLDSTAR JAGGER, Mr Evans said. Their training partnership was only a “small operation” and that was a large expense. The training of greyhounds was their sole source of income. They did not charge training fees and depended on the greyhounds winning stake money as they trained “on a deal”.

[14] Mr Evans submitted that neither of the drugs involved was performance-enhancing.

[15] He referred to the Informant’s penalty submissions and, in particular, the submission that penalties are designed to punish the offender for the wrongdoing. He submitted that they had done no wrong. All they had done was go to their meat supplier and purchase meat for their dogs.

[16] With reference to the previous penalties referred to by the Informant, the case of Agent involved Procaine but, in that case, it had been “knowingly administered”. The fine was $3,000. The Stapleton case involved contaminated meat. The fine in that case was $2,000 but took into account that it was a second offence.

[17] Finally, Mr Evans referred to the Informant’s penalty submissions which stated that “there was no malicious intent, the dogs had not been treated in any way”. The two drugs involved were obtainable only on prescription and had never been prescribed for them, he said.

Reasons for Penalty

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

[19] 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 substances, Flunixin and Procaine, are both 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 suspension or disqualification.

[20] As is more often the case than not in Prohibited Substance cases, there was no evidence from which we could establish conclusively how the prohibited substances came to be found in the three greyhounds. The Respondents submitted that the only possible source of the three positive swabs was the meat sourced from their regular supplier which had been fed to all three dogs and the Committee considered this to be most likely. The Informant, in her penalty submissions, accepted that “there was no malicious intent” and “the dogs had not been treated in any way”. We found their denial that they had administered either of the substances to the greyhounds to be genuine and credible. The Informant, in her Summary of Facts, stated that the meat “could not be ruled out as the source of the positives”.

[21] The Respondents had been purchasing meat which, we were told, was a mixture of horsemeat and beef from the same supplier for three years and, on that basis we can accept that they had no reason to suspect the integrity of the product. They have been let down by their supplier who, it seems, had not maintained adequate screening or security standards.

[22] 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.

[23] 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.

[24] 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.

[25] The facts of the Lawrence and Payne cases are startlingly similar to the present case and, they both being decisions of some authority, we take the view that the penalty on appeal of a $2,000 fine in each of those cases would also be appropriate in the present case - $1,000 for the first breach and $500 for each of the second and third breaches.

[26] We have not overlooked the Penalty Guide starting point of a $4,000 fine. Mitigating factors are the Respondents’ frank admission of the breach, their conduct during the course of the investigation, their previous excellent record – see paragraph [12] – and their lack of culpability. The Informant did not challenge the integrity of the Respondents as greyhound trainers. 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 50% 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 $2,000, in line with the penalties in the Lawrence and Payne cases.

[27] The Committee is satisfied that a fine of $2,000 is sufficient to emphasise the need for deterrence and denunciation and to maintain integrity and public confidence in greyhound racing.

Penalty

[28] The training partnership of Mr and Mrs Evans is fined the sum of $2,000, being a fine of $1,000 on one breach and fines of $500 on each of the other two breaches.

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.

Disqualification of Greyhounds

[30] The Committee orders as follows:

1. That ULTRA ACTION be disqualified from Race 15, Protexin Dash, at the meeting of Christchurch Greyhound Racing Club, held at Addington Raceway on 28 February 2017;

2. That GOLDSTAR SCOOTER be disqualified from Race 1, The Fitz Sports Bar Sprint, at the meeting of Christchurch Greyhound Racing Club, held at Addington Raceway on 16 March 2017;

3. That GOLDSTAR JAGGER be disqualified from Race 9, NZ Racing Series Distance Final, at the meeting of Wanganui Greyhound Racing Club, held at Hatrick Raceway on 17 March 2017; and

4. That all stake moneys be repaid by the Respondents to Greyhound Racing New Zealand.

R G McKENZIE           D J ANDERSON

Chairman                  Committee Member 

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