Non Raceday Inquiry RIU v B Finn – decision dated 28 September 2015 – Chair, Prof G Hall
ID: JCA12671
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT DUNEDIN
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND Mr Braden FINN
Licensed Greyhound Trainer
Respondent
Judicial Committee: Prof G Hall, Chairman - Mr T Utikere, Member of Committee
Appearing: Mr A Irving for the Informant, Mr B Finn, Respondent
DECISION OF JUDICIAL COMMITTEE
[1] The Respondent, Mr Finn faces two charges.
[2] The first charge is that “on 31 May 2015 he presented SWEET IT IS for and raced in Race 11 at the race meeting conducted by the Auckland Greyhound Racing Club at Manukau, failed to present the said greyhound free of the Category 4 Prohibited Substance, namely Caffeine and its Metabolites, being an offence under the provisions of rr 86.1 and 86.3 and punishable pursuant to rr 88.1 and 86.4 of the New Zealand Greyhound Racing Association Rules.”
[3] The second charge is that “on 7 June 2015 he presented SWEET IT IS for and raced in Race 10 at the race meeting conducted by the Auckland Greyhound Racing Club at Manukau, failed to present the said greyhound free of the Category 4 Prohibited Substance, namely Caffeine and its Metabolites, being an offence under the provisions of rr 86.1 and 86.3 and punishable pursuant to rr 88.1 and 86.4 of the New Zealand Greyhound Racing Association Rules.”
[4] The informant produced an authority to charge Mr Finn signed by the General Manager of the RIU, Mr M Godber, dated 17 July 2015. One aspect of this letter is considered later in our decision.
[5] Mr Finn confirmed to this Committee during a telephone conference held with the parties on 6 August that it was his signature on information nos. A4169 and A4170 and that he admitted the breaches.
[6] Mr Finn stated that he also accepted the summary of facts as presented by the Informant.
[7] Both parties indicated at the telephone conference that the matter could proceed on the papers.
[8] Rule 86.1 provides:
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.
[9] Rule 86.3 provides:
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.
[10] Rule 88.1 provides:
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.
[11] Rule 86.4 provides:
Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.
The facts
[12] The facts may be summarised briefly.
[13] Mr Finn owns and trains the 5 year-old bitch SWEET IT IS, which won a qualifying heat of the Duke of Edinburgh Silver Collar at the Auckland Greyhound Racing Club’s meeting at Manukau on 31 May 2015. SWEET IT IS earned gross stake money of $1980. The greyhound was pre-race swabbed and on 11 June the NZ Racing Laboratory Services issued a certificate of analysis detailing the sample as being positive to caffeine and its metabolites Theobromine, Theophylline and Paraxanthine.
[14] On 7 June at the Auckland Greyhound Racing Club’s meeting at Manukau, SWEET IT IS won the final of the Duke of Edinburgh Silver Collar and was post-race swabbed. The greyhound earned gross stake money of $46,800. On 15 June NZ Racing Laboratory Services issued a certificate of analysis detailing a second sample positive to caffeine and its metabolites Theobromine, Theophylline and Paraxanthin.
[15] Caffeine is a Category 4 prohibited substance under the GRNZ regulations.
[16] On 16 June last Mr Finn was interviewed at his residence in Herne Hill, Geelong. He did not contest the swabbing process, could offer no explanation for the caffeine positive, and was adamant he had not administered anything to SWEET IT IS that contained caffeine.
[17] Further inquiries revealed that the Nutrience Grain Free kibble, which was fed to SWEET IT IS while kennelled at Ms Karen Walsh’s property in Tirau, contained the ingredient “green tea extract”. A sample of the Nutrience Grain Free kibble taken from Ms Walsh’s property was sent to NZ Racing Laboratory Services and results confirmed the presence of caffeine.
[18] When spoken to about the Nutrience product, Mr Finn stated that his normal kibble (Canidae Grain Free) was unavailable in New Zealand. When Ms Walsh had provided him with alternative products he had chosen the Nutrience variety. In explanation, Mr Finn stated that he trusted the Nutrience brand as many greyhound trainers use their products but he did not research its ingredients.
[19] At the request of Mr Finn, both swab “B” samples were sent to the Australian Racing Forensic Laboratory at Randwick for further testing. On 10 July both samples were confirmed as positive to caffeine and its metabolites.
[20] Mr Finn stated with respect to the summary of facts that the breaches were “clearly accidental” and he accepted he had not taken enough care in reading the ingredients on the Nutrience label. He emphasised that it does not state on the bag that the kibble contains caffeine. In Australia, he said, there were warning labels for caffeine.
Informant’s penalty submissions
[21] The Informant stated that Mr Finn, aged 31, was a licensed trainer under the Australasian Rules of Greyhound Racing, having been involved in the Greyhound Racing industry for approximately 11 years, as a ‘hobby’ trainer (of a single dog at a time) and being an owner of many.
[22] The Informant stated there had been no similar cases involving a Category 4 prohibited substance since the inception of the new penalty system on 1 September 2014. The starting point approved jointly by GRNZ and the JCA for a Category 4 offence is six months disqualification and/or a fine $5000.
[23] Mr Irving described the Respondent as being culpable of “low-mid level” negligence, in his failing to take proper and reasonable care by not specifically checking the ingredients of the new feed product that was being given to SWEET IT IS.
[24] Mr Irving submitted the appropriate combined penalty for the two breaches was a $6000 fine. He drew this Committee’s attention to two cases involving prohibited substances that had been decided since the new penalty system came into effect.
RIU v Agent (20 January 2015) penalty imposed $3000 fine, greyhound disqualified – Procaine (Category 5; 3 months disqualification and/or $4000 fine) administered as Penicillin.
RIU v Lawrence (2 March 2015) penalty imposed $4000 fine, three greyhounds disqualified – Morphine (Category 1; 10 years disqualification / no fine provision) unidentified source. (Appealed following the identification of the source being from manufacturer contaminated kibble – fine reduced to $2000 — see [53]).
[25] The following cases (pre-penalty increase), Mr Irving submitted, mainly involved the careless administration of products containing caffeine:
RIU v McInerney (4 November 2013) penalty imposed $3,000 fine, both greyhounds disqualified – caffeine, administration of supplement ‘Canine EPO’.
NZGRA v Blackburn (9 July 2010) penalty imposed $1500 fine, greyhound disqualified – caffeine, administration of supplement ‘Ambrotose AO’.
NZGRA v Speight (13 April 2011) penalty imposed $1500 fine, greyhound disqualified – caffeine, administration of supplement ‘Techtonic.’
RIU v Williams (17 August 2014) penalty imposed $2000 fine, both greyhounds disqualified – caffeine, unidentified source.
[26] Mr Irving submitted that it appeared from previous penalties where there had been two counts of the same charge resulting from the same ‘act’, that the fine imposed had been one and a half times what a single charge would incur, rather than a cumulative fine (RIU v McInerney 2013).
[27] The RIU acknowledged that the Respondent had been fully co-operative with the investigation and had pleaded guilty to the breaches at the first opportunity.
[28] The RIU sought costs of $2812.60 (AU$2369.72 + NZ$150.00 freight/packaging) for the referee testing of the two ‘B Samples’ at the NSW Laboratory as requested by Mr Finn.
Respondent’s penalty submissions
[29] Mr Finn’s submissions were brief. He stated he had been involved with greyhounds for over 10 years and had never had a positive swab. He was the sole owner of SWEET IT IS. His personal loss of stake earnings from the two disqualifications was $48,780.
[30] The disqualification of SWEET IT IS, Mr Finn said, from the heat and final would amount to around a $50,000 loss, plus the cost of getting the bitch and himself to NZ and return of $5,000. He emphasised it had also cost his and the dog’s clean reputation.
Decision: a preliminary matter
[31] Before an information may be filed by a Racecourse Investigator r 91.2(a) requires that the consent of the operations manager of the Integrity Services Provider must have first been obtained.
[32] It is apparent to this Committee that the letter signed by the General Manager of the RIU, Mr M Godber, dated 17 July 2015, which provides the authority to charge Mr Finn, contains a fundamental error.
[33] Mr Godber’s letter refers to “the heat and the final of the Duke of Edinburgh Silver Collar at Manukau on 7 and 15 June 2015 respectively.”
[34] The two races in question are correctly described in this letter but the stated dates are wrong. The heat was on 31 May and the final was raced on 7 June.
[35] There was thus no authorisation before this Committee to lodge the information for the 31 May charge.
[36] Rule 91.10 provides:
Following any hearing commenced before it under these Rules, the Judicial Committee shall determine the proceeding. It may find any Offence proved, or dismiss the information or objection, either on the merits or without prejudice to its again being laid, or make such other order as it thinks fit.
[37] In our minute issued on 26 August last we identified a number of ways in which this matter might be resolved. We could dismiss the information under r 91.10 without prejudice to the charge being laid again or the Informant could seek leave from this Committee to amend the letter. The information could also be dismissed on its merits, although without hearing from the parties, this course of action, we said, appeared initially unattractive as the interests of the connections of the dogs that would otherwise be promoted following the disqualification of SWEET IT IS would be adversely affected. In addition, there was no evidence before us that would lead us to find that the mistake in Mr Godber’s letter had misled Mr Finn in his deciding to admit to the two charges.
[38] These were only preliminary observations, and we invited the parties to make submissions with respect to this matter.
[39] We received a submission from Mr Irving on 2 September 2015 seeking leave from this Committee to amend Mr Godber’s letter to the correct date of 31 May. Mr Finn indicated in a brief email response on 21 September that he had no objection to our granting the Informant leave to amend the date.
[40] We see no injustice to Mr Finn in granting the RIU leave to amend Mr Godber’s letter, and accordingly there is now authorisation for the laying of the two charges and we thus have jurisdiction to deal with both of the alleged breaches.
[41] Mr Finn has admitted the two breaches, which we thus find proved.
Decision as to penalty
[42] There is no dispute as to the circumstances of the breaches. The dog was fed the kibble Nutrience Grain Free, which makes no reference to caffeine on the label, but does refer to the presence of green tea extract.
[43] Mr Finn’s preferred regular brand of dog feed, Canidae Grain Free kibble was unavailable in New Zealand. He was not in the country when Ms Walsh, with whom SWEET IT IS was being housed, purchased the alternative Nutrience product. She researched alternative grain free products and spoke via telephone with Mr Finn who chose Nutrience from a couple of options, as he trusted the brand and knew other trainers who used their products. It appears Ms Walsh had not checked the ingredients of the kibble.
[44] The Nutrience website and various online purchasing forums list the product’s ingredients. Mr Finn clearly, had he so thought, could have accessed this information.
[45] Mr Irving has not disputed Mr Finn’s statement that equivalent (but not identical) Australian kibble contains a warning as to the presence of caffeine. But that does not excuse Mr Finn, and arguably because the dog was being fed a kibble different to the variety he used in Australia, this should have alerted him to the need to take especial care.
[46] The label clearly identifies the fact that the kibble contains green tea extract, which also might be thought to have put Mr Finn on notice (using Ms Walsh, if necessary, at the outset as an intermediary and himself, in person, once he was at her kennels) as to the possibility of the presence of caffeine. As he has acknowledged in his brief submission, he did not take “enough care in reading the ingredients on the Nutrience label”.
[47] Mr Finn’s failure cannot be said to be at the higher end of the scale. That said, the obligation is clearly upon a trainer to ensure that a dog is presented to race drug free and we accept Mr Irving’s submission that given that this was a prestigious Group 1 race (and, we note, additionally the qualifying heat for such), Mr Finn should have been even more vigilant around his feed product selection.
[48] We need to have regard to the penalties imposed for similar breaches. The closest case is one not referred to this Committee in submissions from either party. However, this is understandable, as it is a very recent decision. The case is RIU v Blackburn 18 August 2015. The respondent had been feeding the dog in question Nutrience Hairball - Indoor (cat feed) mixed in with its normal kibble as the product had a higher protein level than other feeds. This product listed green tea extract as one of its ingredients. Mrs Blackburn had not noticed this reference and agreed it was an oversight on her part. It was her second breach of this rule in her 34-year career. The previous breach was five years earlier.
[49] The Judicial Committee in Blackburn adopted the recommended starting point of a fine of $5000. This was uplifted by $1000 having regard to her omission to see the reference to green tea extract on the label and her previous breach. She received a discount of $2000 for her early admission of the breach, remorse, and long and dedicated record in the industry. The penalty was thus a fine of $4000. Costs to the JCA of $250 were ordered.
[50] The facts in Blackburn are remarkably similar to those before us, except that Mr Finn was not feeding cat food to his dog and he does not have a previous breach of this rule. SWEET IT IS returned two positives as opposed to the one in Blackburn.
[51] In RIU v Dempsey 17 September 2015 the Judicial Committee imposed a fine of $2500 where ‘a hobby trainer’ was aware that the greyhound had eaten chocolates (which he knew contained caffeine) but deliberately “took the risk” and raced the greyhound a day later, as he did not expect the dog to win. The starting point was $5000. There was no uplift despite the trainer’s admission he was “blasé” about the dog returning a positive sample, and the reduction for personal circumstances, including good record, remorse, cooperation and early admission of the breach, was generous (50%).
[52] There is a further recent case — one in the Harness code. RIU v Whittaker 17 August 2015 involved a horse feed, which on testing was found to contain caffeine. This fact was not known to both the Respondent and, significantly, the manufacturer. This feed supplement had been given to the horse in question on raceday. The Judicial Committee concluded “no negligence or any wrongdoing” could be attributed to the Respondent. The penalty imposed, a fine of $1000, was in order to preserve and maintain integrity and public confidence in racing, as had been emphasised in the cases of Lawrence and RIU v Justice (2011).
[53] The kibble fed to the three greyhounds in Lawrence was positive to caffeine due to a batch of the product being contaminated. Not surprisingly, the Respondent did not know this. The fine was reduced on appeal to $1000 for the first breach and $500 for each of the other two. The Appeals Tribunal in this case did not have the benefit of submissions as to penalty.
[54] We note three of the four cases prior to the amendment to the penalty rule, cited by Mr Irving, relate to the administration of a supplement, which is a significant distinguishing feature from the case before us. In the fourth, the source of the caffeine was never established. The penalty in that case was a (global) fine of $2000 where there were two breaches, involving two dogs.
[55] If the practice in previous cases where there has been two counts of the same charge resulting from the same “act”, is, as Mr Irving states, of the fine imposed being one and a half times what a single charge would incur, rather than a cumulative fine, we can see little utility in a calculation as precise as this. This was, we note, the ultimate outcome in McInerney, as a result of the application of what is known as the “totality principle”. It was not the approach adopted in Williams where a global fine was imposed and the starting point increased by an unspecified amount to take account of the fact two different dogs returned positives over a period of three weeks.
[56] As a result of our disqualifying SWEET IT IS, Mr Finn will lose stakes winnings totalling $48,780 through his continuing to feed a product that he was unaware contained caffeine. If SWEET IT IS had been given, on a second occasion, a different kibble containing caffeine, the contents of which were again unchecked, or were we dealing with a charge of administration rather than negligence, we could see the logic in increased penalties, whether or not that be one and a half times the penalty appropriate for one breach. But we do not want to be seen to be endorsing such a calculation, as in our view each case of multiple breaches will depend on its particular facts and we would not want to attempt to restrict another Judicial Committee’s exercise of its sentencing discretion.
[57] The penalty we impose has to ensure that the integrity of racing is upheld by a meaningful penalty in the interests of denunciation and deterrence, but this has to be determined with reference to the prescribed starting point of $5000, the penalties imposed in similar cases, the nature and gravity of the particular breaches, and the personal circumstances of the Respondent.
[58] As Mr Irving has acknowledged in his submissions as to penalty, the two positive results have essentially been from the same act of carelessness, rather than two separate incidents. We are satisfied a global sum is appropriate, which we will determine having regard to the fact there are two charges, but we see no need to treat the gravity of the respondent’s conduct as being half as culpable again simply because there was a further feeding of the kibble in question to the dog.
[59] When regard is had to Williams, Blackburn, and Dempsey, Mr Irving’s submission that a fine of $6000 is appropriate is on the high side.
[60] We intend to treat the breaches in a global fashion. We take the accepted starting point of $5000. There are no aggravating factors of the breaches. With regard to Mr Finn’s culpability, we believe the breaches to be mid-scale, in that Mr Finn relied on Ms Walsh and his “trusted Nutrience brand” in circumstances where diligent inquiries would have alerted him to the presence of green tea extract and thus caffeine. We thus do not increase or reduce the starting point for the circumstances in which the breaches occurred.
[61] Our next step is to have regard to Mr Finn’s personal circumstances. He has a clear record, is of good character and has admitted the breaches at the first opportunity. Mr Finn has not previously trained a greyhound that has raced abroad. His reputation has no doubt suffered as a consequence of his being charged. We also take into account that, as the owner of SWEET IT IS, he has suffered a significant financial impost through the loss of stake monies as a consequence of the dog being disqualified from the two races. His estimation is a global sum close to $55,000, and that would appear to us to be near to the mark.
[62] Significantly, Mr Finn has cooperated fully with the RIU and this Committee in endeavouring to expedite matters, which have been delayed for the reasons identified earlier in this decision. No blame attaches to Mr Finn in this regard. We believe a further reduction of $1500 is appropriate for personal factors. (We regard the reduction of $2000 in Blackburn as generous but also note Mr Finn does not have a long record of involvement in the industry to call upon, as did Mrs Blackburn.) That leaves a final penalty of a fine of $3500 (cf $4000 in Blackburn, where there was a previous breach five years earlier), which we impose concurrently on each charge. This, we believe, will hold Mr Finn to account for his omission to check the ingredients of the kibble and will act as a deterrent to him and others to comply with the NZ Greyhound Racing Association Rules, although we are aware it is inevitable in the circumstances of this case, that the loss of a win and the accompanying stake in such a prestigious race as the final of the Duke of Edinburgh Silver Collar is likely to have more impact in this regard.
Disqualification
[63] Pursuant to r 86.4, SWEET IT IS is disqualified from race 11, THE PLASTER BOARD LTD SILVER COLLAR HEAT 2, at the Auckland Greyhound Racing Club’s meeting at Manukau on 31 May 2015; and race 10, THE PLASTER BOARD LTD DUKE OF EDINBURGH SILVER COLLAR GROUP 1, at the Auckland Greyhound Racing Club’s meeting at Manukau on 7 June 2015. We order that the stakes be paid accordingly. We have not been informed whether the stakes monies have been paid to Mr Finn. If they have, they are to be refunded.
Costs
[64] The matter has been dealt with on the papers, with the consent of the parties. This has reduced costs. The RIU seek only the $2812.60 (AU$2369.72 and NZ$150.00 freight/packaging) for the referee testing of the two B Samples at the NSW Laboratory. As this testing was conducted at the request of Mr Finn, we believe this is appropriate. We award a sum of $2812.60 to the RIU.
[65] A further contribution by Mr Finn to the costs of the JCA is both just and reasonable. However, we specifically refrain from taking into consideration the time involved in dealing with the error in Mr Godber’s letter in determining the sum we require Mr Finn to pay. Had Mr Finn sought legal advice with respect to the application by the RIU to amend the letter, we would have given careful consideration to any application for costs by him with respect to this matter.
[66] We order Mr Finn to pay costs of $500 to the JCA.
Dated at Dunedin this 28th day of September 2015.
G Hall
Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 28/09/2015
Publish Date: 28/09/2015
JCA Decision Fields (raw)
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decisiondate: 28/09/2015
hearing_title: Non Raceday Inquiry RIU v B Finn - decision dated 28 September 2015 - Chair, Prof G Hall
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT DUNEDIN
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN RACING INTEGRITY UNIT
Informant
AND Mr Braden FINN
Licensed Greyhound Trainer
Respondent
Judicial Committee: Prof G Hall, Chairman - Mr T Utikere, Member of Committee
Appearing: Mr A Irving for the Informant, Mr B Finn, Respondent
DECISION OF JUDICIAL COMMITTEE
[1] The Respondent, Mr Finn faces two charges.
[2] The first charge is that “on 31 May 2015 he presented SWEET IT IS for and raced in Race 11 at the race meeting conducted by the Auckland Greyhound Racing Club at Manukau, failed to present the said greyhound free of the Category 4 Prohibited Substance, namely Caffeine and its Metabolites, being an offence under the provisions of rr 86.1 and 86.3 and punishable pursuant to rr 88.1 and 86.4 of the New Zealand Greyhound Racing Association Rules.”
[3] The second charge is that “on 7 June 2015 he presented SWEET IT IS for and raced in Race 10 at the race meeting conducted by the Auckland Greyhound Racing Club at Manukau, failed to present the said greyhound free of the Category 4 Prohibited Substance, namely Caffeine and its Metabolites, being an offence under the provisions of rr 86.1 and 86.3 and punishable pursuant to rr 88.1 and 86.4 of the New Zealand Greyhound Racing Association Rules.”
[4] The informant produced an authority to charge Mr Finn signed by the General Manager of the RIU, Mr M Godber, dated 17 July 2015. One aspect of this letter is considered later in our decision.
[5] Mr Finn confirmed to this Committee during a telephone conference held with the parties on 6 August that it was his signature on information nos. A4169 and A4170 and that he admitted the breaches.
[6] Mr Finn stated that he also accepted the summary of facts as presented by the Informant.
[7] Both parties indicated at the telephone conference that the matter could proceed on the papers.
[8] Rule 86.1 provides:
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.
[9] Rule 86.3 provides:
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.
[10] Rule 88.1 provides:
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.
[11] Rule 86.4 provides:
Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.
The facts
[12] The facts may be summarised briefly.
[13] Mr Finn owns and trains the 5 year-old bitch SWEET IT IS, which won a qualifying heat of the Duke of Edinburgh Silver Collar at the Auckland Greyhound Racing Club’s meeting at Manukau on 31 May 2015. SWEET IT IS earned gross stake money of $1980. The greyhound was pre-race swabbed and on 11 June the NZ Racing Laboratory Services issued a certificate of analysis detailing the sample as being positive to caffeine and its metabolites Theobromine, Theophylline and Paraxanthine.
[14] On 7 June at the Auckland Greyhound Racing Club’s meeting at Manukau, SWEET IT IS won the final of the Duke of Edinburgh Silver Collar and was post-race swabbed. The greyhound earned gross stake money of $46,800. On 15 June NZ Racing Laboratory Services issued a certificate of analysis detailing a second sample positive to caffeine and its metabolites Theobromine, Theophylline and Paraxanthin.
[15] Caffeine is a Category 4 prohibited substance under the GRNZ regulations.
[16] On 16 June last Mr Finn was interviewed at his residence in Herne Hill, Geelong. He did not contest the swabbing process, could offer no explanation for the caffeine positive, and was adamant he had not administered anything to SWEET IT IS that contained caffeine.
[17] Further inquiries revealed that the Nutrience Grain Free kibble, which was fed to SWEET IT IS while kennelled at Ms Karen Walsh’s property in Tirau, contained the ingredient “green tea extract”. A sample of the Nutrience Grain Free kibble taken from Ms Walsh’s property was sent to NZ Racing Laboratory Services and results confirmed the presence of caffeine.
[18] When spoken to about the Nutrience product, Mr Finn stated that his normal kibble (Canidae Grain Free) was unavailable in New Zealand. When Ms Walsh had provided him with alternative products he had chosen the Nutrience variety. In explanation, Mr Finn stated that he trusted the Nutrience brand as many greyhound trainers use their products but he did not research its ingredients.
[19] At the request of Mr Finn, both swab “B” samples were sent to the Australian Racing Forensic Laboratory at Randwick for further testing. On 10 July both samples were confirmed as positive to caffeine and its metabolites.
[20] Mr Finn stated with respect to the summary of facts that the breaches were “clearly accidental” and he accepted he had not taken enough care in reading the ingredients on the Nutrience label. He emphasised that it does not state on the bag that the kibble contains caffeine. In Australia, he said, there were warning labels for caffeine.
Informant’s penalty submissions
[21] The Informant stated that Mr Finn, aged 31, was a licensed trainer under the Australasian Rules of Greyhound Racing, having been involved in the Greyhound Racing industry for approximately 11 years, as a ‘hobby’ trainer (of a single dog at a time) and being an owner of many.
[22] The Informant stated there had been no similar cases involving a Category 4 prohibited substance since the inception of the new penalty system on 1 September 2014. The starting point approved jointly by GRNZ and the JCA for a Category 4 offence is six months disqualification and/or a fine $5000.
[23] Mr Irving described the Respondent as being culpable of “low-mid level” negligence, in his failing to take proper and reasonable care by not specifically checking the ingredients of the new feed product that was being given to SWEET IT IS.
[24] Mr Irving submitted the appropriate combined penalty for the two breaches was a $6000 fine. He drew this Committee’s attention to two cases involving prohibited substances that had been decided since the new penalty system came into effect.
RIU v Agent (20 January 2015) penalty imposed $3000 fine, greyhound disqualified – Procaine (Category 5; 3 months disqualification and/or $4000 fine) administered as Penicillin.
RIU v Lawrence (2 March 2015) penalty imposed $4000 fine, three greyhounds disqualified – Morphine (Category 1; 10 years disqualification / no fine provision) unidentified source. (Appealed following the identification of the source being from manufacturer contaminated kibble – fine reduced to $2000 — see [53]).
[25] The following cases (pre-penalty increase), Mr Irving submitted, mainly involved the careless administration of products containing caffeine:
RIU v McInerney (4 November 2013) penalty imposed $3,000 fine, both greyhounds disqualified – caffeine, administration of supplement ‘Canine EPO’.
NZGRA v Blackburn (9 July 2010) penalty imposed $1500 fine, greyhound disqualified – caffeine, administration of supplement ‘Ambrotose AO’.
NZGRA v Speight (13 April 2011) penalty imposed $1500 fine, greyhound disqualified – caffeine, administration of supplement ‘Techtonic.’
RIU v Williams (17 August 2014) penalty imposed $2000 fine, both greyhounds disqualified – caffeine, unidentified source.
[26] Mr Irving submitted that it appeared from previous penalties where there had been two counts of the same charge resulting from the same ‘act’, that the fine imposed had been one and a half times what a single charge would incur, rather than a cumulative fine (RIU v McInerney 2013).
[27] The RIU acknowledged that the Respondent had been fully co-operative with the investigation and had pleaded guilty to the breaches at the first opportunity.
[28] The RIU sought costs of $2812.60 (AU$2369.72 + NZ$150.00 freight/packaging) for the referee testing of the two ‘B Samples’ at the NSW Laboratory as requested by Mr Finn.
Respondent’s penalty submissions
[29] Mr Finn’s submissions were brief. He stated he had been involved with greyhounds for over 10 years and had never had a positive swab. He was the sole owner of SWEET IT IS. His personal loss of stake earnings from the two disqualifications was $48,780.
[30] The disqualification of SWEET IT IS, Mr Finn said, from the heat and final would amount to around a $50,000 loss, plus the cost of getting the bitch and himself to NZ and return of $5,000. He emphasised it had also cost his and the dog’s clean reputation.
Decision: a preliminary matter
[31] Before an information may be filed by a Racecourse Investigator r 91.2(a) requires that the consent of the operations manager of the Integrity Services Provider must have first been obtained.
[32] It is apparent to this Committee that the letter signed by the General Manager of the RIU, Mr M Godber, dated 17 July 2015, which provides the authority to charge Mr Finn, contains a fundamental error.
[33] Mr Godber’s letter refers to “the heat and the final of the Duke of Edinburgh Silver Collar at Manukau on 7 and 15 June 2015 respectively.”
[34] The two races in question are correctly described in this letter but the stated dates are wrong. The heat was on 31 May and the final was raced on 7 June.
[35] There was thus no authorisation before this Committee to lodge the information for the 31 May charge.
[36] Rule 91.10 provides:
Following any hearing commenced before it under these Rules, the Judicial Committee shall determine the proceeding. It may find any Offence proved, or dismiss the information or objection, either on the merits or without prejudice to its again being laid, or make such other order as it thinks fit.
[37] In our minute issued on 26 August last we identified a number of ways in which this matter might be resolved. We could dismiss the information under r 91.10 without prejudice to the charge being laid again or the Informant could seek leave from this Committee to amend the letter. The information could also be dismissed on its merits, although without hearing from the parties, this course of action, we said, appeared initially unattractive as the interests of the connections of the dogs that would otherwise be promoted following the disqualification of SWEET IT IS would be adversely affected. In addition, there was no evidence before us that would lead us to find that the mistake in Mr Godber’s letter had misled Mr Finn in his deciding to admit to the two charges.
[38] These were only preliminary observations, and we invited the parties to make submissions with respect to this matter.
[39] We received a submission from Mr Irving on 2 September 2015 seeking leave from this Committee to amend Mr Godber’s letter to the correct date of 31 May. Mr Finn indicated in a brief email response on 21 September that he had no objection to our granting the Informant leave to amend the date.
[40] We see no injustice to Mr Finn in granting the RIU leave to amend Mr Godber’s letter, and accordingly there is now authorisation for the laying of the two charges and we thus have jurisdiction to deal with both of the alleged breaches.
[41] Mr Finn has admitted the two breaches, which we thus find proved.
Decision as to penalty
[42] There is no dispute as to the circumstances of the breaches. The dog was fed the kibble Nutrience Grain Free, which makes no reference to caffeine on the label, but does refer to the presence of green tea extract.
[43] Mr Finn’s preferred regular brand of dog feed, Canidae Grain Free kibble was unavailable in New Zealand. He was not in the country when Ms Walsh, with whom SWEET IT IS was being housed, purchased the alternative Nutrience product. She researched alternative grain free products and spoke via telephone with Mr Finn who chose Nutrience from a couple of options, as he trusted the brand and knew other trainers who used their products. It appears Ms Walsh had not checked the ingredients of the kibble.
[44] The Nutrience website and various online purchasing forums list the product’s ingredients. Mr Finn clearly, had he so thought, could have accessed this information.
[45] Mr Irving has not disputed Mr Finn’s statement that equivalent (but not identical) Australian kibble contains a warning as to the presence of caffeine. But that does not excuse Mr Finn, and arguably because the dog was being fed a kibble different to the variety he used in Australia, this should have alerted him to the need to take especial care.
[46] The label clearly identifies the fact that the kibble contains green tea extract, which also might be thought to have put Mr Finn on notice (using Ms Walsh, if necessary, at the outset as an intermediary and himself, in person, once he was at her kennels) as to the possibility of the presence of caffeine. As he has acknowledged in his brief submission, he did not take “enough care in reading the ingredients on the Nutrience label”.
[47] Mr Finn’s failure cannot be said to be at the higher end of the scale. That said, the obligation is clearly upon a trainer to ensure that a dog is presented to race drug free and we accept Mr Irving’s submission that given that this was a prestigious Group 1 race (and, we note, additionally the qualifying heat for such), Mr Finn should have been even more vigilant around his feed product selection.
[48] We need to have regard to the penalties imposed for similar breaches. The closest case is one not referred to this Committee in submissions from either party. However, this is understandable, as it is a very recent decision. The case is RIU v Blackburn 18 August 2015. The respondent had been feeding the dog in question Nutrience Hairball - Indoor (cat feed) mixed in with its normal kibble as the product had a higher protein level than other feeds. This product listed green tea extract as one of its ingredients. Mrs Blackburn had not noticed this reference and agreed it was an oversight on her part. It was her second breach of this rule in her 34-year career. The previous breach was five years earlier.
[49] The Judicial Committee in Blackburn adopted the recommended starting point of a fine of $5000. This was uplifted by $1000 having regard to her omission to see the reference to green tea extract on the label and her previous breach. She received a discount of $2000 for her early admission of the breach, remorse, and long and dedicated record in the industry. The penalty was thus a fine of $4000. Costs to the JCA of $250 were ordered.
[50] The facts in Blackburn are remarkably similar to those before us, except that Mr Finn was not feeding cat food to his dog and he does not have a previous breach of this rule. SWEET IT IS returned two positives as opposed to the one in Blackburn.
[51] In RIU v Dempsey 17 September 2015 the Judicial Committee imposed a fine of $2500 where ‘a hobby trainer’ was aware that the greyhound had eaten chocolates (which he knew contained caffeine) but deliberately “took the risk” and raced the greyhound a day later, as he did not expect the dog to win. The starting point was $5000. There was no uplift despite the trainer’s admission he was “blasé” about the dog returning a positive sample, and the reduction for personal circumstances, including good record, remorse, cooperation and early admission of the breach, was generous (50%).
[52] There is a further recent case — one in the Harness code. RIU v Whittaker 17 August 2015 involved a horse feed, which on testing was found to contain caffeine. This fact was not known to both the Respondent and, significantly, the manufacturer. This feed supplement had been given to the horse in question on raceday. The Judicial Committee concluded “no negligence or any wrongdoing” could be attributed to the Respondent. The penalty imposed, a fine of $1000, was in order to preserve and maintain integrity and public confidence in racing, as had been emphasised in the cases of Lawrence and RIU v Justice (2011).
[53] The kibble fed to the three greyhounds in Lawrence was positive to caffeine due to a batch of the product being contaminated. Not surprisingly, the Respondent did not know this. The fine was reduced on appeal to $1000 for the first breach and $500 for each of the other two. The Appeals Tribunal in this case did not have the benefit of submissions as to penalty.
[54] We note three of the four cases prior to the amendment to the penalty rule, cited by Mr Irving, relate to the administration of a supplement, which is a significant distinguishing feature from the case before us. In the fourth, the source of the caffeine was never established. The penalty in that case was a (global) fine of $2000 where there were two breaches, involving two dogs.
[55] If the practice in previous cases where there has been two counts of the same charge resulting from the same “act”, is, as Mr Irving states, of the fine imposed being one and a half times what a single charge would incur, rather than a cumulative fine, we can see little utility in a calculation as precise as this. This was, we note, the ultimate outcome in McInerney, as a result of the application of what is known as the “totality principle”. It was not the approach adopted in Williams where a global fine was imposed and the starting point increased by an unspecified amount to take account of the fact two different dogs returned positives over a period of three weeks.
[56] As a result of our disqualifying SWEET IT IS, Mr Finn will lose stakes winnings totalling $48,780 through his continuing to feed a product that he was unaware contained caffeine. If SWEET IT IS had been given, on a second occasion, a different kibble containing caffeine, the contents of which were again unchecked, or were we dealing with a charge of administration rather than negligence, we could see the logic in increased penalties, whether or not that be one and a half times the penalty appropriate for one breach. But we do not want to be seen to be endorsing such a calculation, as in our view each case of multiple breaches will depend on its particular facts and we would not want to attempt to restrict another Judicial Committee’s exercise of its sentencing discretion.
[57] The penalty we impose has to ensure that the integrity of racing is upheld by a meaningful penalty in the interests of denunciation and deterrence, but this has to be determined with reference to the prescribed starting point of $5000, the penalties imposed in similar cases, the nature and gravity of the particular breaches, and the personal circumstances of the Respondent.
[58] As Mr Irving has acknowledged in his submissions as to penalty, the two positive results have essentially been from the same act of carelessness, rather than two separate incidents. We are satisfied a global sum is appropriate, which we will determine having regard to the fact there are two charges, but we see no need to treat the gravity of the respondent’s conduct as being half as culpable again simply because there was a further feeding of the kibble in question to the dog.
[59] When regard is had to Williams, Blackburn, and Dempsey, Mr Irving’s submission that a fine of $6000 is appropriate is on the high side.
[60] We intend to treat the breaches in a global fashion. We take the accepted starting point of $5000. There are no aggravating factors of the breaches. With regard to Mr Finn’s culpability, we believe the breaches to be mid-scale, in that Mr Finn relied on Ms Walsh and his “trusted Nutrience brand” in circumstances where diligent inquiries would have alerted him to the presence of green tea extract and thus caffeine. We thus do not increase or reduce the starting point for the circumstances in which the breaches occurred.
[61] Our next step is to have regard to Mr Finn’s personal circumstances. He has a clear record, is of good character and has admitted the breaches at the first opportunity. Mr Finn has not previously trained a greyhound that has raced abroad. His reputation has no doubt suffered as a consequence of his being charged. We also take into account that, as the owner of SWEET IT IS, he has suffered a significant financial impost through the loss of stake monies as a consequence of the dog being disqualified from the two races. His estimation is a global sum close to $55,000, and that would appear to us to be near to the mark.
[62] Significantly, Mr Finn has cooperated fully with the RIU and this Committee in endeavouring to expedite matters, which have been delayed for the reasons identified earlier in this decision. No blame attaches to Mr Finn in this regard. We believe a further reduction of $1500 is appropriate for personal factors. (We regard the reduction of $2000 in Blackburn as generous but also note Mr Finn does not have a long record of involvement in the industry to call upon, as did Mrs Blackburn.) That leaves a final penalty of a fine of $3500 (cf $4000 in Blackburn, where there was a previous breach five years earlier), which we impose concurrently on each charge. This, we believe, will hold Mr Finn to account for his omission to check the ingredients of the kibble and will act as a deterrent to him and others to comply with the NZ Greyhound Racing Association Rules, although we are aware it is inevitable in the circumstances of this case, that the loss of a win and the accompanying stake in such a prestigious race as the final of the Duke of Edinburgh Silver Collar is likely to have more impact in this regard.
Disqualification
[63] Pursuant to r 86.4, SWEET IT IS is disqualified from race 11, THE PLASTER BOARD LTD SILVER COLLAR HEAT 2, at the Auckland Greyhound Racing Club’s meeting at Manukau on 31 May 2015; and race 10, THE PLASTER BOARD LTD DUKE OF EDINBURGH SILVER COLLAR GROUP 1, at the Auckland Greyhound Racing Club’s meeting at Manukau on 7 June 2015. We order that the stakes be paid accordingly. We have not been informed whether the stakes monies have been paid to Mr Finn. If they have, they are to be refunded.
Costs
[64] The matter has been dealt with on the papers, with the consent of the parties. This has reduced costs. The RIU seek only the $2812.60 (AU$2369.72 and NZ$150.00 freight/packaging) for the referee testing of the two B Samples at the NSW Laboratory. As this testing was conducted at the request of Mr Finn, we believe this is appropriate. We award a sum of $2812.60 to the RIU.
[65] A further contribution by Mr Finn to the costs of the JCA is both just and reasonable. However, we specifically refrain from taking into consideration the time involved in dealing with the error in Mr Godber’s letter in determining the sum we require Mr Finn to pay. Had Mr Finn sought legal advice with respect to the application by the RIU to amend the letter, we would have given careful consideration to any application for costs by him with respect to this matter.
[66] We order Mr Finn to pay costs of $500 to the JCA.
Dated at Dunedin this 28th day of September 2015.
G Hall
Chairman
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