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Non Raceday Inquiry RIU v J McInerney and R Armstrong - Written decision dated 31 August 2018

Created on 04 September 2018

BEFORE A JUDICIAL COMMITTEE
OF THE JCA AT CHRISTCHURCH

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

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND Mr John McInerney
Public Trainer
Respondent

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND Mr Ray Armstrong
Employee
Respondent

Information Nos: A7155, A7156, A7157
Judicial Committee: Prof G Hall, Chairman - Mr D Jackson, Member
Appearing: Mr S Symon for the Informant, Mr A Davis for Mr McInerney, Ms L Bulger for Mr Armstrong

WRITTEN DECISION OF JUDICIAL COMMITTEE

[1] Mr McInerney and Mr Armstrong are before this Committee charged with breaches of the New Zealand Rules of Greyhound Racing.

[2] Two informations have been laid with respect to Mr McInerney.

[3] Information No A7155 alleges a breach of r 62.1(a) in:
THAT on or about the 19th January 2018, being a Licensed Public Trainer, he failed to comply with the Animal Welfare (Racing Industry Greyhounds) Code of Welfare 2013 and failed to provide proper care for greyhounds under his control.

[4] Information No A7156 alleges a breach of r 62.1(q) in:
THAT on or about the 19th January 2018, being a Licensed Public Trainer, he omitted to do an act, that omission being detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing, being his omission to give sufficient instruction to employee Ray Armstrong to ensure the safe transportation of five greyhounds trained by him.

[5] Information No A7157 relates to Mr Armstrong and alleges a breach of r 62.1(o) in:
THAT on or about the 19th January 2018, he did a negligent thing in relation to a greyhound, in that he was negligent towards the care and welfare of greyhounds he transported.

[6] Rule 63.1 provides: 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.

[7] The hearing of these matters commenced by way of a defended hearing.

[8] Mr Stephen McInerney gave evidence for the informant. He was cross examined by counsel for Mr McInerney and Mr Armstrong. Part way through his re-examination, the Committee took the morning recess.

[9] At this time the Committee was informed by the Registrar that the parties were conferring. We agreed that the recommencement of the hearing could be delayed to allow their discussions to continue.

[10] When the hearing reconvened, Mr Symon confirmed to the Committee the informant had indicated to the respondents that if they each admitted the charges that they faced, the RIU would submit that a fine of $5000 in total was appropriate for Mr McInerney and $1000 for Mr Armstrong. Further, the informant would require a contribution to the costs of the RIU and the JCA.

[11] Mr Symon confirmed to the Committee that the RIU were not seeking a penalty of disqualification or suspension at this time with respect to Mr McInerney. The penalty that was sought with respect to Mr Armstrong reflected his financial position, as it was known to the RIU. The possibility of his paying the fine by instalment was considered in order that Mr Armstrong not suffer undue hardship.

[12] Mr Symon confirmed his instructions were to resolve the case on this basis provided the JCA accepted that the penalties were suitable and appropriate, and the respondents likewise changed their respective non-admissions.

[13] Mr Davis and Ms Bulger confirmed that their clients would admit the breaches now if the JCA accepted that the respective penalties were appropriate. If not, the hearing would proceed.

[14] Ms Bulger stated that Mr Armstrong was not employed by Mr McInerney and was not in regular employment and thus had no source of income other than the National Super.

[15] The Committee determined that it required an agreed summary of facts in order that there was a clear factual basis on which we could determine penalty, in effect by way of a penalty indication hearing.

[16] We also requested that the parties provide us with authorities to assist our determining the appropriate level of penalty.

[17] After an adjournment, we received an agreed summary of facts.

Summary of Facts
[18] The respondent, Mr John McInerney, is a licensed Public Trainer under the Rules of New Zealand Greyhound Racing (GRNZ). He is 60 years old and has been a greyhound trainer for many years.

[19] The respondent, Mr Ray Armstrong, is a 76 year-old retired truck driver who for the last year has been employed on a casual part-time basis by Mr McInerney to mow lawns and drive vehicles transporting greyhounds, normally to Invercargill or Dunedin. He is not a GRNZ licence holder or registered owner.
Circumstances

[20] On Friday the 19th January 2018, Mr Armstrong drove four of Mr McInerney’s greyhounds in Mr McInerney’s Toyota Hiace van from Darfield to Picton, crossing Cook Strait on the Interislander ferry "Kaitaki" on the 2.l5pm sailing.

[21] The dogs were transported in cages within the van. The doors at the front of the dog cages (facing the van's side doors) had been removed. Therefore, the sliding doors and windows on the side of the van could not be opened when the van was stationary, without the risk of the greyhounds escaping.

[22] The trip from Darfield to Picton, at the very fastest, takes approximately 5 hours and 21 minutes. Vehicles have to arrive one hour prior to the sailing time to be loaded onto the ferry. On this basis, Mr Armstrong would have had to leave Darfield by 7.45am at the very latest.

[23] At the Wellington Interislander ferry terminal carpark, the four dogs that Mr Armstrong had transported from Darfield were swapped for six other McInerney-trained greyhounds that Mr McInerney's son (Stephen McInerney, himself a GRNZ Licensed handler) had brought down from his property near Foxton. They had been fed and watered prior to the two hour drive and were "emptied out" en route at Paraparaumu, a 45 minute drive from the terminal.

[24] The six greyhounds (Crazy Sunday, Sasha McBell, Sammy Baxter, Botany Dianne, Sioux Baxter and Jane Baxter), were 3-4 year old racing dogs being sent to Mr McInerney’s kennels for reassessment as to their racing futures. GRNZ records detail the greyhounds are owned by M Bell, T Provost, and R & K Thompson.

[25] In the carpark, the dogs were loaded into the cages inside the van by Mr Stephen McInerney, who instructed Mr Armstrong to open up the rear door of the van when on the ferry as he shut the sliding windows on both sides of the van. Stephen McInerney shut the sliding windows because the doors of the front dog cages had been removed at Darfield.

[26] Mr Stephen McInerney stated that the greyhounds were suffering no illnesses or medical conditions and were behaving normally at the handover.
Ferry from Wellington to Picton

[27] At approximately 7.00pm, Mr Armstrong parked the van on vehicle deck three of the "Kaitaki" and was positioned next to the "Centre Casing", which funnels hot air upwards from the engine room.

[28] The Centre Casing itself is warm to touch. Once the deck doors are closed, this deck is entirely enclosed. The area can become hot, especially if it is a hot day. While there are fans that can be turned on to increase ventilation in the area, they would only be turned on if the crew were advised that there were animals being transported on the deck.

[29] Staff on the Interislander are aware of animal welfare and assist with positioning vehicles containing animals in strategic locations, and also utilise vehicle deck five which is "open ended" (hence has significantly better ventilation).

[30] Mr Armstrong did not advise any crew members that he had dogs in his van. He did not open the rear van door. The sliding windows and the sliding doors at the side of the van were closed. The only ventilation in the van was via the driver and passenger windows being half down.

[31] The ferry was scheduled to depart from Wellington at 8.30pm. It was a warm mild evening with the daily Wellington high / low temperatures being recorded as 25 / 17 degrees.

[32] Following a calm three and a half hour crossing, the ferry arrived in Picton at approximately midnight. Mr Armstrong returned to the van. He drove off the ferry, and shortly after exiting the ferry, stopped the van briefly in Picton to carry out a check on the dogs through the van's windows, in the dark. He could not open the sliding doors of the van to carry out a check without risking the greyhounds escaping (because the doors of the cages had been removed).

[33] He then drove the return journey back to Darfield via the inland route. This is a drive time of approximately seven and a half hours. The total journey including the two ferry crossings took approximately 24 hours with Mr Armstrong not sleeping during this time.

[34] The greyhounds were not removed from the van, "emptied out" or provided any water for the remainder of their travel from Wellington, approximately 12 hours.

[35] Mr Armstrong arrived at the McInerney property near Darfield at 7.30am and upon opening the van found five of the six greyhounds dead. The surviving dog, Jane Baxter, was positioned in the cage directly behind the front passenger seat. Upon inspection, the dead dogs were lying in a state as if they were asleep.

[36] At 8.30am the dead dogs were examined "in situ" by veterinarian Dr Koning at Leeston. She found brownish petechiae (dots caused by blood vessel leakage) in the dogs’ ears and some body fluid emitting from their mouths probably caused by the beginnings of decomposition. Rigor mortis indicated that the dogs had been dead for some time but she was unable to establish a time of death.

[37] Dr Koning reported the cause of deaths as asphyxia caused by lack of oxygen and issued Death Certificates per GRNZ requirement.

[38] The RIU's investigation, having considered all of the evidence, concludes that the dogs died from a combination of lack of oxygen and heat during the ferry passage.

Respondents’ Statements
[39] Mr Armstrong was interviewed on the 14th and 28th February 2018.

[40] He admitted that he had not opened the rear van door on the ferry.

[41] He stated that he had checked on the dogs at Picton shortly after departing the ferry. However, he also admitted that this was a very cursory check. He merely looked through the van windows. This check occurred at approximately 11.30 pm - 12 am at night. He did not use a torch to check. He stated that other than the surviving dog, all the other dogs appeared to be sleeping.

[42] He stated he did not open the van doors to carry out a more thorough check, given that the doors of the cages had been removed, and opening the van doors would have allowed the dogs to escape.

[43] Mr Armstrong did not refer to being provided with any kind of formal plan at the outset by Mr McInerney, beyond bare instructions to pick up the dogs from Mr Stephen McInerney and transport them back to Darfield.

[44] Mr McInerney was interviewed on the 15th February 2018.

[45] Mr McInerney's instructions to Mr Armstrong before Mr Armstrong left Darfield were scant: he told Mr Armstrong to get off at Wellington, and load on the new dogs. He did not give any instructions to Mr Armstrong in relation to transporting them on the ferry, or steps to take to ensure they had adequate ventilation. He told Mr Armstrong that because Mr Stephen McInerney would have fed the dogs, the dogs should sleep on their way to Darfield.

[46] Mr McInerney referred to Mr Armstrong having accompanied him on transportation trips previously, and there being a routine on those previous occasions. However, Mr McInerney did not indicate that these previous transportation trips together involved a ferry crossing.

[47] Mr McInerney also referred to his own experiences in transporting greyhounds, including being "half asleep" and being under pressure to "be ready to go". The last time he completed the ferry trip, he acknowledges that it was "stuffy" and "so warm [he] couldn't believe it". Mr McInerney is also aware of the possibility of carbon monoxide fumes on the ferry. He did not inform Armstrong of the concerns specific to the ferry.

[48] Mr McInerney also referred to the difficulty of “emptying out “dogs in the dark.
Armstrong - negligent acts and omissions

[49] Mr Armstrong has carried the out following negligent acts and omissions:
• Failing to ensure the van was parked somewhere suitable on the ferry to ensure the greyhounds received adequate ventilation, and were not at risk of overheating.
• Failing to leave the back door of the van open to allow sufficient air to get in.
• Leaving the dogs unaccompanied for four hours in the above circumstances.
• Failing to check on the dogs properly after getting off the ferry. This should involve more than a cursory check through the van window in the dark. At the very least, he should have opened the sliding doors of the van and had a closer inspection.
Mr McInerney - failure to adhere to the Code of Welfare and to provide proper care

[50] Mr McInerney is the trainer of the greyhounds. He is ultimately responsible for their welfare, and under the Rules cannot delegate this responsibility to any other person.

[51] The Animal Welfare (Racing Industry Greyhounds) Code of Welfare 2013 (Code of Welfare), Chapter 7 outlines the code in respect of transportation. We do not discuss those in any great detail, except to note the following:
(a) dogs must be provided with adequate ventilation when being carried in a vehicle;
(b) dogs must not be left unattended in a vehicle in conditions where the dog is likely to suffer from heat stress;
(c) trainers must ensure that good quality water is provided to each greyhound at least every six hours, or more frequently on hot or humid days; and
(d) a greyhound should not be kept in a mode of transport for more than 6 hours without breaks provided. A break should consist of being let out of the mode of transport for at least 10 minutes.

[52] The Recommended Best Practice in the Code of Welfare is that dogs should not be left unattended in vehicles. If a dog must be left in a vehicle even for a short time, the vehicle should be parked in shade with more than one window left open to allow air to circulate so that heat stress will not occur.

[53] Mr Armstrong was employed and instructed by Mr McInerney. Mr McInerney failed to provide proper care for his greyhounds, by failing to provide sufficient instructions to Mr Armstrong to enable him to provide proper care for the greyhounds during the period the greyhounds were in his care:
(a) By failing to instruct Mr Armstrong to find a suitable place on the ferry to park the van;
(b) By failing to instruct Mr Armstrong to provide adequate ventilation for the dogs;
(c) By failing to instruct Mr Armstrong to carry out regular and thorough checks on the dogs;
(d) By failing to provide Mr Armstrong with a van and cages where the side doors of the van could be opened to enable adequate checks to be done;
(e) By failing to instruct Mr Armstrong not to leave the dogs unattended in circumstances where they were likely to suffer from heat stress.

Conclusion
[54] Mr McInerney has several previous serious racing offence charges.

[55] Mr Armstrong is not licensed, so has not appeared before the JCA previously.

Oral Submissions as to Penalty

[56] Counsel each submitted that the facts of this case were unusual and there were no relevant JCA decisions. Animal welfare cases were also unlikely to assist because of the difference in maximum penalties ($10,000 v imprisonment).

[57] Mr Symon stated that the RIU believed their penalty submission was a reasonable one, having taken a conservative view of where the breaches sit on the range of seriousness. The RIU believed culpability was best described as “medium”, having regard to the fact that five dogs had died. Their penalty submission took into account the good record of Mr McInerney and the impact that these charges had had on his reputation. It also had regard to the fact that it was Mr Armstrong who had had the direct contact with the dogs.

[58] Mr Davis emphasised that the admission of the breaches would save a day and a half in hearing time, which he believed should be reflected in the penalty that was imposed. He described Mr McInerney’s level of culpability as low to mid-range.

[59] The respondents informed us that they wished to be able to make further oral submissions with respect to one paragraph in the summary of facts. We stated that the issue of Mr McInerney’s record should also be addressed.

[60] We indicated to the parties that we accepted the practicalities of the proposal that was before us, that we believed there was a rational and reasoned basis for the penalties proposed, and that we were prepared to impose penalty having regard to the submissions of the RIU and the further submissions from the respondents.

[61] We adjourned the hearing to enable the parties to prepare their oral submissions.

[62] Upon reconvening, counsel confirmed the changes of plea. We then heard counsel with respect to the summary of facts and penalty.

Further Oral Submissions as to Penalty
[63] Mr Symon stated that he understood the matters in the summary that were at issue related to the placement of the van in the particular parking spot on the ferry and the leaving of the dogs unaccompanied for four hours in circumstances where the back doors of the van had not been left open.

[64] Mr Symon accepted that Mr Armstrong had had limited opportunity to dictate where the van would be parked but he emphasised that Mr Armstrong had not made the crew on the ferry aware that there were dogs in the van. If the crew had known, there would have been a “better” placement of the van on the boat.

[65] Mr Symon further accepted that the ability of a driver of a vehicle to go back down to the vehicle once the ferry was underway was limited. Usually once upstairs, the occupant of a vehicle had to remain there.

[66] However, Mr Symon emphasised that it was a hot day / night and if Mr Armstrong had concerns he would have been able to make arrangements with the crew to go back down to the van. He had not done so.

[67] Mr Symon drew this Committee’s attention to the clear nature of the Code of Welfare 2013 requirements that dogs be provided with adequate ventilation when being carried in a vehicle and not be left unattended when likely to suffer from heat stress.

[68] Mr Symon also addressed the issue of Mr McInerney’s record. He stated the respondent had no history of animal welfare issues. The RIU were not seeking an uplift for previous breaches. Mr McInerney’s history had been factored into their consideration that a fine of $5000 was appropriate.

[69] Mr Davis addressed the previous breaches. They were not related to animal welfare. One related to Mr McInerney presenting a dog with a prohibited substance in its system. This was the result of contaminated meat. Unbeknown to Mr McInerney the meat contained penicillin.

[70] Mr Davis stated the charges before us had to be considered in the context that Mr McInerney transported some 6000 dogs a year to race meetings in New Zealand. He had done so for 30 years and this was the first issue he had had.

[71] Mr Davis said that the RIU submission that the negligence was in the lower quartile when considering penalty was a fair concession by them.

[72] The Committee asked Mr Symon to confirm or clarify this. He responded the RIU believed culpability was mid-range.

[73] Mr Davis asked us to consider the fact that this matter had received a lot of publicity. It had featured in the national papers. This had resulted in public odium for Mr McInerney.

[74] Mr Davis emphasised Mr McInerney had a good record with respect to animal welfare. The welfare of his dogs was paramount, as this was his livelihood. He had been one of the top two trainers in the country for the last 15 years.

[75] Mr Davis also referred to the fact that Mr McInerney had immediately alerted the authorities once the dogs’ deaths had become known to him. He had made no attempt to hide the matter. His first concern had been for the dogs and to endeavour to find out how the deaths had occurred. He had spoken to Mr Armstrong, endeavoured to find CCTV coverage, and had made follow-up inquiries. He had initially considered it was a possibility that someone had got at the dogs. Mr McInerney had co-operated with the RIU investigation.

[76] Mr Davis concluded his submission by stating that the penalty should be a fine of $5000 or a lesser figure. Once costs were considered, the total amount would be a significant “penalty” for Mr McInerney.

[77] Ms Bulger stated that Mr Armstrong did not agree that he had failed to park the van where there was suitable ventilation. He agreed, however, he had not left the back doors open. He had had to park the van at the direction of the ferry staff. He had not said he had dogs on board and had simply parked where he was told. He was unaware of the loyalty programme and the associated tags on vehicles which would have alerted the crew to the fact there were animals in the vehicle.

[78] With respect to his leaving the dogs unaccompanied, Mr Armstrong could not just go down to the van as a matter of right. He would need to be sufficiently concerned to go down. If he did, he would have had to be escorted there and back.

[79] Ms Bulger stated that there was no employment relationship. Mr Armstrong was doing this as a favour to Mr McInerney.

[80] Mr Armstrong very much regretted the loss of the five dogs. The thought of the dogs being in distress upset him but there was no evidence that this had been the case. They simply could have gone to sleep and not woken up.

[81] Ms Bulger addressed Mr Armstrong’s financial position, which was far from strong. She said he could pay a small fine by instalments. Mr Armstrong was reluctant to commit to the payment of costs. He was only before the Committee because Mr McInerney was here.

[82] Mr Davis made a further submission on behalf of Mr McInerney. He said the deaths of the dogs had brought about a significant change in greyhound health and welfare standards. He said it would not be an over-statement to say this was a watershed case, a test case.

[83] Mr Irving, the Racecourse Investigator with responsibility for this case, spoke to this issue. He said this was correct. The new standards were in force from 1 August this year. They specifically created duties where greyhounds were crossing by ferry.

[84] Mr Irving agreed with Mr Davis that the duties on licence holders had been made clear and were onerous.

[85] Mr Symon replied to Ms Bulger’s submission, stating that Mr Armstrong had been transporting dogs for Mr McInerney for the last year or so. The RIU accepted, however, this was the first time he had taken dogs over Cook Strait on the ferry.

[86] Mr Symon addressed the issue of costs. He said the RIU outgoings were at least $15,000 but they accepted an award was usually only at a level of approximately 50 to 60 per cent of actual costs.

[87] Mr Symon submitted that costs in the sum of $5000 should be awarded in favour of the RIU. Mr Symon emphasised this was a concession made with respect to this case only. In the ordinary course of events, costs would be split between the two respondents but he accepted this was not appropriate in this case.

Decision as to Penalty
[88] The agreed summary of facts records that the RIU's investigation concludes that the dogs died from a combination of lack of oxygen and heat during the ferry crossing.

[89] The crux of the charge against Mr Armstrong is that he did not advise any crew members that he had dogs in his van, and, in addition, he did not open the rear door of the van. The sliding windows and the sliding doors at the side of the van were closed. The only ventilation in the van was via the driver and passenger windows, which were half down. It was a warm mild evening with the daily Wellington high /low temperatures being recorded as 25 / 17 degrees. Mr Armstrong did not attempt to check on the dogs during the ferry crossing.

[90] Following a calm three and a half hour crossing, Mr Armstrong drove off the ferry and, shortly after exiting the ferry, stopped the van briefly in Picton to carry out a check on the dogs through the van's windows, in the dark. He could not open the sliding doors of the van to carry out a check, without risking the greyhounds escaping because the doors of the cages had been removed. He noticed nothing amiss with the dogs and drove to Mr McInerney’s property at Darfield without further stopping.

[91] Mr McInerney is the trainer of the greyhounds. He is ultimately responsible for their welfare and, under the Rules, he cannot delegate this responsibility to any other person. Mr McInerney failed to adhere to the Code of Welfare and to provide proper care for these greyhounds, by failing to provide sufficient instructions to Mr Armstrong to enable him to provide proper care during the time the greyhounds were under his control. In particular:
• By failing to instruct Mr Armstrong to find a suitable place on the ferry to park the van;
• By failing to instruct Mr Armstrong to provide adequate ventilation for the dogs;
• By failing to instruct Mr Armstrong to carry out regular and thorough checks on the dogs;
• By failing to provide Mr Armstrong with a van and cages where the side doors of the van could be opened to enable adequate checks to be made;
• By failing to instruct Mr Armstrong not to leave the dogs unattended in circumstances where they were likely to suffer from heat stress

[92] The inability to open the side doors of the van due to the ability of the dogs to escape, and, with respect to the ferry crossing, the ability to only partially open the sliding side windows for the same reason, was known to Mr McInerney. This feature of the van’s lay out and his failure to give clear instructions to Mr Armstrong concerning the need to alert the Interislander crew to the presence of the dogs and thus obtain an appropriate place to park, to open the rear door, and to ensure adequate ventilation, are significant factors in assessing Mr McInerney’s culpability.

[93] Mr Armstrong’s failure to open the rear doors and to alert the crew as to the presence of the dogs, as previously noted, are the key factors in assessing his culpability. It is unknown whether a more careful check of the dogs on exiting the ferry would have prevented their deaths. Again, the configuration of the cages, windows and side doors made this task difficult, especially with it being at night. It is a relevant factor, but we do not place too much weight on this, as the evidence suggests it is possible that the dogs may have already met their demise by this time. Mr Armstrong, when questioned by the RIU investigators, stated that the only dog moving when he cursorily looked into the van was the dog that survived. He, of course, thought the other dogs were asleep.

[94] The RIU assess the degree of culpability of the respondents as mid-range, while Mr Davis has described it as low to mid-range. We would view the culpability of each respondent as being mid-range, perhaps towards the lower end of that. As noted, the cause of death is likely to be a combination of lack of oxygen and heat stress. In making our assessment as to degree of culpability, we note the positioning of the van and observe that while the opening of the van’s rear door would clearly have reduced the risk of the dogs over-heating, this may have increased the risk of their inhaling carbon monoxide fumes were the engines of the other vehicles started before Mr Armstrong had returned to the van and shut the back door. A similar observation is apt with respect to opening the side windows.

[95] We have had regard to the submissions of counsel.

[96] We note that Mr McInerney’s admission of the breaches has followed the RIU’s indication that were there to be such admissions they would not seek a penalty in the nature of a suspension or disqualification. We accept that that conclusion was appropriate in the unusual circumstances of this case.

[97] A principal concern for Mr Armstrong was whether the Rules applied to him. We have received submissions from Ms Bulger and Mr Symon with respect to this issue, but his admission of the breach has meant that we have not had to address this matter.

[98] The penalty we impose has to mark the seriousness of the breaches, uphold the reputation of the greyhound industry, and hold the respondents accountable for their actions / omissions. The deaths and thus loss of the dogs, in itself, is a clear deterrent and there is less of a need for us to place emphasis on this purpose of sentencing. The adverse publicity for Mr McInerney is a further factor to consider, as is the tarnish to his good reputation. And the change to the Health and Safety Code is perhaps the one good thing that has come out of this most unfortunate episode.
Mr McInerney

[99] Having regard to the maximum penalty of $10000 for each charge and the unusual nature of this case, we take a global starting point for mid-range breaches of $7,500 for Mr McInerney. When regard is had to personal circumstances, the previous breaches are not aggravating as we are told they are historical and do not relate to animal welfare. So there is no uplift to that starting point.

[100] Mr McInerney is entitled to call upon his good character, especially when regard is had to his lifetime involvement in the industry, his clear remorse, his co-operation with the RIU investigation which was evident from the outset, and his late admission of the breaches, which has saved a day and a half’s hearing time (although any discrete discount for such a late change of plea can only be slight).

[101] Looking at the matters in the round, as we are required to do, we believe a fine of $5000 is an appropriate penalty. The two breaches Mr McInerney has admitted arise out of the one set of circumstances. Having regard to accepted principles when sentencing for multiple offences (in this instance, breaches), the penalties would reflect the gravity of each charge and would be imposed concurrently. That would result in concurrent fines of $5000 on each charge, which in our view would appropriately mark the seriousness of each breach. To impose $5000 fines cumulatively would be doubly to punish Mr McInerney, which would not be just. However, concurrent fines are not usual and in order to respect the totality principle, we impose (cumulative) fines of $2500 on each charge.
Mr Armstrong

 

[102] We view Mr Armstrong’s culpability as being a little less than that of Mr McInerney. It was the first time he had taken dogs on the ferry, although he had transported dogs for Mr McInerney on an irregular basis to South Island race meetings. Mr Armstrong had not received clear instructions from either Mr McInerney or Mr Stephen McInerney. He was not aware he could give information to the crew that would result in the van being parked in a place that had regard to the health and safety of the dogs. However, once parked, he should have been alert to the need to give the dogs as much ventilation as possible, by opening the side windows as much as the dogs’ security would allow and opening the back door of the van. We do not view his failure to check on the dogs during the crossing as being as significant a failing of his duty of care to the dogs as were his previous omissions, despite it being a warm night. We accept he had not been aware he could return to the van, albeit with an escort, were he to request that he go below deck. We can readily understand that this policy by the ferry operator is for reasons of security. That said, Mr Armstrong was aware where the van was positioned and the extent of ventilation that was available to the dogs, and this should have been at the forefront of his mind during the crossing and, if necessary, he should have approached a member of the crew.

[103] We emphasise Mr Armstrong was the person in charge of the dogs at that time. This task had been entrusted to him by Mr McInerney. The dogs were in his hands; their health and safety were his responsibility. He let them down in this regard.

[104] We take a starting point of $6000 to reflect these aggravating and mitigating factors of the offending, which we have weighed in the balance.

[105] With respect to personal mitigating factors, Mr Armstrong does not have a lengthy history of involvement in the industry. We are not informed as to his character. We are prepared in the absence of evidence to the contrary to regard it as good. He has also co-operated with the RIU’s investigation and admitted the breach. Counsel informs us that he, too, is remorseful. This would lead us to a penalty of around $4000. To impose a penalty at this level would be crippling for Mr Armstrong. We accept he only works for Mr McInerney on a sporadic basis and he is in a straitened financial position. In these circumstances, which we consider to be exceptional, we believe a significant reduction in the quantum of the fine is appropriate. And we take the RIU’s penalty submission to be also a reflection of that fact.

[106] We accept a fine of $1000 is both appropriate and merciful. Payment will be by instalment, and we understand over a reasonably lengthy period of time. A penalty of this magnitude we are told will “hurt” Mr Armstrong. We take from counsel’s submission that it will hold him accountable for the breach, and that is our view also.

Conclusion
[107] Mr McInerney is fined the sum of $5000.

[108] Mr Armstrong is fined the sum of $1000.

Costs
[109] The parties have agreed that an award of costs of $5000 in favour of the RIU is appropriate. We believe such an amount is just and reasonable, as is an award of $1500 to the JCA.

[110] In fixing the apportionment of costs we have regard to the comparative roles played by the respondents, to the fact that under the Rules the ultimate responsibility for the dogs’ welfare rests with Mr McInerney, and to Mr Armstrong’s financial circumstances. We believe it is appropriate to order that the costs be paid solely by Mr McInerney.

[111] Mr McInerney is ordered to pay costs in the sum of $6500.

Dated at Dunedin this 31st day of August 2018.


Geoff Hall, Chairman

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