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Non Raceday Inquiry RIU v T M Furner - Decision dated 8 November 2018 - Chair, Prof G Hall

Created on 13 November 2018

BEFORE A JUDICIAL COMMITTEE

OF THE JCA

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

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND TREVOR MICHAEL FURNER

Licensed Trainer

Respondent

Information No: A4158

Judicial Committee: Prof G Hall, Chairman

Mr P Williams, Member

DECISION OF JUDICIAL COMMITTEE

[1] Mr Furner is charged with a breach of the New Zealand Rules of Greyhound Racing.

[2] Information No A4158 alleges a breach of r 87.1 in that:

On the 3rd day of July 2013, Trevor Michael Furner was the licensed trainer of the greyhound “FLAYOSC” which was presented for and raced in Race 15 at a race meeting conducted by the Wanganui Greyhound Racing Club when the said greyhound was found to have had administered to it a Prohibited Substance, namely Caffeine and Theophylline, being an offence under the provisions of rr 87.1 and 87.3, and punishable pursuant to rr 87.4 and 89.1 of the New Zealand Greyhound Racing Association Rules.

[3] The Rules in force at the time were promulgated in February 2013 and remained in force until February 2014.

[4] Rule 87 (now 61.1, 3, and 4) then provided:

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.

3. Without limiting any of the provisions 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.

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.

[5] Rule 89.1 (now 63.1) stated:

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

(a) a fine not exceeding $10,000 for any one (1) Offence; and/or

(b) Suspension; and/or

(c) Disqualification; and/or

(d) Warning Off.

[6] The rule authorising the laying of the charge was r 92.2(a). The then RIU Board Chairman, Mr Paul Foley, authorised the laying of the charge pursuant to this rule in a letter dated 20 August 2013.

[7] We note that these rules are unchanged other than being renumbered.

[8] In correspondence with the Executive Officer of the JCA, which has been forwarded to this Committee, Mr Furner has stated that he admits the breach and wishes the matter to be heard on the papers.

[9] We have a summary of facts. Mr Furner agrees with this summary.

Summary of facts

[10] The respondent is a former licensed Owner/Trainer under the Rules of the NZ Greyhound Association. He has been involved in the greyhound industry for approximately 30 years and has trained all over the world. He is now resident in South Australia.

[11] On 3 July 2013 FLAYOSC was correctly entered and presented to race by Mr Furner in Race 15, the Mid-Winter Christmas at the Races 5 July C1 Heat C1Q 305m at the Whanganui Greyhound Racing Club meeting at Whanganui.

[12] FLAYOSC underwent a random Post Race urine swab. Mr Furner does not contest the swabbing process.

[13] FLAYOSC finished seventh of the eight greyhounds and did not win a stake.

[14] All swab samples from the meeting were couriered to the NZ Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the NZ Greyhound Racing Association.

[15] On 16 July 2013 the Official Racing Analyst reported in writing that the sample from FLAYOSC had tested positive to Caffeine and its metabolites Theobromine, Theophylline and Paraxanthine.

[16] Caffeine is a central nervous system stimulant of the methylxanthine class of compounds. It is both a central nervous system and a metabolic stimulant. Caffeine and its metabolites Theobromine, Theophylline and Paraxanthine are all central nervous stimulants and metabolic stimulants and are all capable of reducing physical fatigue.

[17] Caffeine is a Category 4 Prohibited Substance under GRNZ Rules and its presence in a race day sample is, prima facie, a breach of the Rules.

[18] At the time Mr Furner was spoken to by RIU Investigator, Mr Bob Bevage. He advised that he was shocked to learn of the positive tests and was unsure how the greyhound had tested positive as he has never administered Caffeine. Mr Furner did admit to discarding his tea bag in the kennelling area.

[19] Mr Furner has had no previous breaches of the Rules in NZ.

Informant’s penalty submissions

[20] The informant identified four principles of sentencing:

• Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be 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 similar 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.

[21] The first three principles had relevance in this case.

[22] An aggravating feature was that Mr Furner was aware of this matter however he left NZ without first ensuring that it was resolved.

[23] On 1 September 2014 the Board of Greyhound Racing New Zealand gave approval to new penalty standards and categorised various Prohibited Substances.

[24] Under these standards Caffeine is categorised as a Category 4 Prohibited Substance. The new starting points are 6 months’ disqualification and/or a $5000 fine.

[25] Mr Furner's breach of this rule was prior to these penalty standards and he should be afforded the penalty standards and precedents as they were at the time of the breach.

[26] The RIU believed that this breach could be dealt with by way of a monetary penalty. To that end they sought a fine of $1,500.

[27] The following cases recorded around the time were said to provide some assistance and guidance regarding penalty:

RIU v A Williams (17.08.14) - This was a Caffeine positive for two greyhounds. Penalty was a $2,000 fine and the greyhounds disqualified.

RIU v M Flipp (4.12.13) - This was a caffeine positive with four greyhounds. Penalty was a $5,000 fine and the greyhounds disqualified.

RIU v J T McInerney (4.09.13) - This matter related to a performance enhancing caffeine type product that was safe to use because it was undetectable. It was intentionally administered. The penalty imposed was $1,500 on each charge (total of $3,000) with both greyhounds disqualified.

NZGRA v R D Blackburn (9.07.10) - This was a caffeine positive for one greyhound. Penalty was a fine of $1,500, costs of $500 and the greyhound disqualified.

[28] This matter is not a situation where Caffeine was administered to enhance performance. In all probability the greyhound concerned has ingested a used tea bag which Mr Furner may have carelessly discarded in the kennelling area.

[29] The RIU acknowledged that Mr Furner has been co-operative.

[30] Mr Furner has no other rule breaches during his near 30 year involvement in the industry.

[31] When the matter was again brought to his attention Mr Furner has admitted the breach at the first opportunity.

[32] The RIU understood that Mr Furner is [extremely unwell] and is deserving of compassion.

[33] Under r 87.4 FLAYOSC is required to be disqualified from the meeting on 3 July 2013.

[34] None of the 'B' samples have been tested and the RIU are not seeking costs.

Respondent’s submission

[35] Mr Furner said he would plead guilty although he did not believe he had had given anything to his dog. He had raced greyhounds for 30 years around the world with a clean record and a good reputation.

[36] Mr Furner accepted that he was the trainer of FLAYOSC and was responsible for the safe keeping of the dog. FLAYOSC had only been in his kennel for 9 days prior to the breach and it was the first time he had raced this dog. He was shocked to learn of the positive test result. He was still unsure as to how the greyhound managed to have Caffeine in its system. He was adamant he had never intentionally administered anything to the dog.

[37] Mr Furner’s illness is of such a nature that he could not make it to NZ for a hearing of this matter.

[38] Mr Furner concluded his written submission by stating, “if the sample is positive it must have come from other avenues as I do not believe in giving anything that is against the rules of racing. I care about my greyhounds.”

Decision

[39] Mr Furner has admitted a breach of r 87.1. It is not clear how the positive to Caffeine occurred. There is reference in the summary to Mr Furner having discarded a tea bag in the kennelling area and to this being a possible source. The rule is one of absolute liability. And, in these circumstances, Mr Furner has acknowledged his liability under the rule.

[40] Although Caffeine is a stimulant, it does not appear to have significantly enhanced the performance of the greyhound in the race in question. FLAYOSC finished second last. The Caffeine level is not stated. The mere presence of the drug is sufficient to create liability under the rule.

[41] We agree with the informant’s submission that the penalty that we impose should be one that reflects sentencing levels at the time the breach was committed. Comparable decisions suggest a penalty in the range of $1,000 to $1,500.

[42] In fixing penalty, we have regard to the need to uphold the integrity of greyhound racing. In the particular circumstances of this case, there is little, if any, need for specific deterrence, but the need to deter other industry participants remains.

[43] The fact that the respondent left the country without this matter being heard is an aggravating factor. Charges had been laid, a Judicial Committee appointed, and a hearing date set of 4 March 2014.

[44] Balanced against this aggravating factor is the respondent’s ready admission of the breach and his co-operation with the authorities when the matter was brought to his attention this year.

[45] The respondent is quite unwell and this is a significant mitigating factor, as the informant has recognised in their penalty submissions.

[46] When regard is had to the gravity of the breach, the respondent’s culpability (although this is difficult to assess on the limited facts before us) and his leaving the country, thereby failing to face up to the charge and to fulfil his obligations as a greyhound trainer back in 2013 / 2014, we believe an appropriate starting point is a fine of $2,500.

[47] The mitigating factors we have identified led us to reduce this by 50 per cent (15 per cent for admission and co-operation, a further 15 per cent for his excellent record over a lengthy period of involvement in the industry, and 20 per cent for the respondent’s serious health issues).

[48] This results in a penalty of a fine of $1,250.

Disqualification

[49] FLAYOSC is disqualified from seventh place in Race 15, the Mid-Winter Christmas at the Races 5 July C1 Heat C1Q 305m at the Whanganui Greyhound Racing Club meeting on 3 July 2013.

Costs

[50] The matter has been heard on the papers. There is no award of costs.

Dated at Dunedin this 8th day of November 2018.

Geoff Hall, Chairman

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