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Non Raceday Inquiry RIU v T A Agent and K Williams - Penalty Decision dated 26 November 2020 - Chair, Hon J W Gendall QC

Created on 30 November 2020

BEFORE A JUDICIAL COMMITTEE

IN THE MATTER of the Rules of New Zealand

Greyhound Racing Association

IN THE MATTER of Information No. A11691

BETWEEN SIMON IRVING, Racing Investigator for the Racing Integrity Unit

Informant

AND TRENT ALFRED AGENT and

KIMBERLEE WILLIAMS

Licensed Trainers, in Partnership

Respondent

Judicial Committee: Hon JW Gendall QC (Chair)

Mr N McCutcheon (Member)

Heard on the papers: 26 November 2020

PENALTY DECISION OF JUDICIAL COMMITTEE DATED 26 NOVEMBER 2020

CHARGE

1. The RIU charged Mr Agent and Ms Williams “as a Licensed Partnership” in charge of the greyhound “FIRECRACKER” which ran in Race 1 at the Wanganui Greyhound Racing Club meeting at Hatrick Raceway on 23 September 2020, failed to present the Greyhound free of the category 4 Prohibited Substance Caffeine and its metabolites, being an offence under the provisions of Rules 61.1 and 61.3 and punishable pursuant to Rule 63.1 and 63.4 of the NZ Greyhound Racing Rules.

THE RULES

2. Rule 61.1 provides that 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.

3. Rule 61.3 provides that persons in charge of a greyhound brought onto a racecourse of any Club for the purpose of racing, which is found on testing, examination, or analysis conducted pursuant to the Rules to have received a prohibited substance shall be severally guilty of an offence.

4. Caffeine is a Category 4 Prohibited substance under the GRNZ Regulations. It and its metabolites affect the central nervous system and are capable of reducing physical fatigue and improving both sprint and endurance performance.

5. The general penalties provision provided under Rule 63.1 (fine up to $10,000 and/or suspension and/or disqualification, and/or warning off) apply but it has been generally accepted that the Penalty Guidelines for a Category 4 Prohibited Substance offence (from a starting point of up to 6 months disqualification and/or a fine of up to $5,000) are appropriate in all but very rare cases.

PLEA

6. The Respondents, being the partnership of the two named persons, admitted the Charge. That can only mean that, whilst charged as a “partnership”(which by the Constitution can be a “person”) each are severally liable - (as is made clear from the words “severally guilty” in Rule 61.3), although for penalty purposes, they are “jointly” liable as the partnership for the penalty applicable, i.e. against both Partners.

RELEVANT FACTS

7. The Respondents became Registered and Licensed as Partnership Owners and Trainers under the Rules of NZ Greyhound Racing. They train about 20 racing greyhounds from their property near Urenui, Taranaki. They own and train the greyhound “FIRECRACKER” which was brought to Hatrick Raceway on 23 September 2020 to the Wanganui GRC meeting, to compete in the “Welcome to Hatrick CO”. It had finished 4th, earning a stake of $80. It had been pre-race swabbed and later analysis disclosed the sample to be positive to Caffeine and its metabolites, Theobromine, Theophylline and Paraxanthine. Caffeine is a prohibited substance under the GRNZ Regulations.

8. The greyhound had been transported to the raceway by Ms Williams. When interviewed by the RIU Official she could offer no explanation for the Caffeine in the greyhound. Neither could Mr Agent. All that Ms Williams could say was to surmise that when the journey to Wanganui was stopped for a comfort break near Waverley Racecourse, the dog “might” have ingested something containing Caffeine when being walked in a rest area. That speculative suggestion could not be supported by extrinsic evidence, and is unlikely given that the greyhound was, or should have been, in the close care of Ms Williams at that time.

9. No evidence of products containing Caffeine were later found at the Respondents’ training property.

10. The Respondents had been training as partners for about one and a half seasons. Before then Mr Agent held a Trainers’ Licence and Ms Williams, a Handlers’ Licence. Mr Agent had committed a breach of the Prohibited Substance Rule (a positive sample to Procaine) in 2014, for which he was fined $3,000). Ms Williams has no previous breaches of the Rules.

PENALTY

11. The RIU sought a fine of $2,500. It referred to the Penalty Guidelines (mentioned above) and 3 previous cases of Goldsack, Brigg and Dempsey, between 2015 and 2019, where fines of $2,000 and $2,500 were imposed. It said that it accepted that the Respondents had no knowledge that the greyhound had consumed Caffeine. But liability is strict so as to ensure those in charge of greyhounds take every possible precaution and are not careless or deficient in their management.

12. The RIU seek one penalty, not separate ones for the 2 Partners, as it must because the charge is against the Licensed Partnership. Because of that, the combined aggravating and mitigating factors have to be taken into account – even though Ms Williams has not on her own accord had a previous transgression.

13. The Respondent partnership has submitted, through the written advice of Ms Williams:

(a) That it did not know that the greyhound had Caffeine in its system, and it would never have started if that was known or suspected

(b) They add to the surmise as to how this might have occurred at a rest stop at Waverley, to offer another possibility that it might have occurred at an area where it was stationed at the raceway

(c) The cases of Goldsack, Brigg, and Dempsey referred to by the RIU and mentioned above, involve situations where “the other trainers knew their dogs had Caffeine [sic] in their systems and still raced them”, so are distinguishable from this case. But that submission is not accurate. In the case of Brian Goldsack, the RIU submission said that the Respondent, had no knowledge that the dog had ingested Caffeine. In Brigg, the decision refers to an explanation later advanced that the dog “may” have ingested tea bags, but “Mr Briggs did not know of that” when the dog raced. It was in Dempsey that the decision referred to the Respondent’s explanation that he may being aware of “a possibility” that the dog “may” have ingested chocolate (which contains caffeine) but chose to run it.

(d) Ms Williams’ submission is that a fine of $850 would be “ fair”.

DECISION

14. The imposition of what may appear to be stern and significant fines have been, and will remain, necessary for the critical reason of providing deterrence to others in the Code. It is paramount that great care is necessary to ensure that greyhounds are presented to race free of any prohibited substance. Apart from the deterrence factor, (and animal welfare considerations) the integrity of the racing events, where all greyhounds must compete “on an even playing field”– is vital so as to ensure the confidence of punters, as well as owners and trainers, and consequently to the financial background to the Code and the Industry.

15. As mentioned, it is necessary to impose one penalty against the Licensed Partnership despite Ms Williams not having in her history any aggravating prior offence. Be cognisant of the Guidelines, we take as a starting point a fine of $2,500. Credit received for cooperation and guilty plea (although it would have been impossible to defend) is to be balanced against the aggravating history of the earlier breach by Mr Agent which resulted in a $3,000 fine. Bearing in mind that as a partner Ms Williams is jointly liable for the penalty, we fix the penalty imposed on the partnership at a fine of $2,250.

16. The greyhound “FIRECRACKER” is disqualified from Race 1 at the Wanganui GR Club meeting Race 1 on 23 September 2020.

17. The partnership Respondent is fined $2,250. No order for costs is sought by the RIU. We make no order for costs to the JCA as the matter has been dealt with on the papers.

Hon J W Gendall QC

(Chair)

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