Appeal SJ Payne v RIU – Decision dated 5 June 2015
ID: JCA14380
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
HELD AT CAMBRIDGE RACEWAY CAMBRIDGE
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr SCOTT JOHN PAYNE Licenced Trainer NZGRA
Appellant
AND RACING INTEGRITY UNIT (RIU)
Mr N GRIMSTONE – (Chief Investigator) appearing
Respondent
Appeals Tribunal Mr BJ Scott, Chairman - Mr AJ Dooley, Member of Tribunal
Appearing: The Appellant in person;
Mr N Grimstone for the Respondent
Registrar - Mr A Cruickshank (RIU Investigator)
DECISION OF APPEALS TRIBUNAL
Introduction
1.1 On the 27th of March 2015 before a Judicial Committee appointed by the Judicial Control Authority for Racing, Mr Payne admitted three charges brought against him under Rules 87.1 and 87.3 of the Rules of NZ Greyhound Racing.
The charges alleged as follows:
(a) That on the 24th day of December 2014 Mr Payne as Trainer of the Greyhound ROTOVEGAS RARA presented the said Greyhound which was found to have administered to it the category 5 prohibited substance Procaine.
(b) That on the 2nd day of January 2015 Mr Payne as Trainer of the Greyhound ROTOVEGAS RAT presented the said Greyhound which was found to have administered to it the category 5 prohibited substance Procaine.
(c) That on the 4th day of January 2015 at a Meeting conducted by the Auckland Greyhound Racing Club at Manukau Stadium Raceway Mr Payne as Trainer of the Greyhound ROTOVEGAS RARA presented the said Greyhound which was found to have administered to it the category 5 prohibited substance Procaine
1.2 Following the Hearing and evidence and submissions presented to it by both the Racing Integrity Unit and Mr Payne in relation to penalty, the Judicial Committee in a written Decision delivered on the 7th day of April 2015 imposed fines on Mr Payne totalling $4,500.00 being specified as $1,500.00 on each of the three charges.
1.3 The Greyhounds were disqualified from the races as follows:
(i) ROTOVEGAS RARA was disqualified from the Race it won at the Waikato Racing Club’s Meeting on the 24th day of December 2014. The winning stake for that Race was $1,440.00.
(ii) ROTOVEGAS RAT was disqualified from the Race it won at the Waikato Racing Club’s Meeting on the 2nd day of January 2015. The winning stake for that Race was $1,320.00.
(iii) ROTOVEGAS RARA was disqualified from the Race it won at the Auckland Greyhound Racing Club’s Meeting on the 4th day of January 2015. The winning stake for that Race was $2,160.00.
1.4 On the 13th day of April 2015 Mr Payne lodged an Appeal against the Decision of the Judicial Committee. This was an Appeal against penalty only and was against the severity of the fine that was imposed.
1.5 Mr Payne was asked to provide more detailed grounds of his Appeal and he responded as follows:
(a) I feel this should be treated as one contamination over a period of 12 days. Therefore I believe the 2nd and 3rd offences should be at a discounted rate. As in GA Lawrence case 1st offence $2,000.00, 2nd offence $1,000.00, 3rd offence $1,000.00.
(b) I don’t understand how a category 1 (up to 10 years disqualification) can get fined less than a category 5 (up to 4 months disqualification) total fine $4,500 cat 1 $4,000.00 cat 5.
(c) Keeping in mind the 7 morphine swabs are no different to my case apart from the difference in category class drugs. The kibble was tested but at the time the actual kibble feed had all been fed out just like my meat. In the public eye how would this look if either a cat 5 class drug got no fines and for the same reasons a cat 1 got fined or the other outcome would be cat 5 getting a lesser fine of that of a cat 1 drug? This seems wrong to me.
(d) The question I ask is, what could I have done differently that would have stopped this from happening.
JCA Decision
2.1 The Tribunal had available to it the original Decision in this matter dated the 7th day of April 2015. The Decision was both extensive and helpful.
2.2 The submissions from Mr Grimstone recorded in that Decision were that as far as the RIU were concerned there was no deliberate administration by Mr Payne. A further submission was that three positive tests over a period of 12 days may indicate an accidental administration.
In a further submission Mr Grimstone had stated that “in his opinion it was most likely that meat from Down Cow Ltd which Mr Payne had fed his dogs had been contaminated”.
2.3 Mr Payne at the substantive Hearing had told the Committee that in November 2014 his existing supplier of meat could no longer continue to supply. He had made enquiries of other Trainers and it was recommended to him that he buy his meat from Alan Cleaver of Down Cow Ltd. That Company had three grades of meat and Mr Payne had told the Committee that he had spoken with Mr Cleaver and had told him that he had six Greyhounds and he wanted the best meat possible. He said he wanted the same meat as was being supplied to leading Trainers of Greyhounds in the country.
Mr Payne told the Committee that $4,920.00 in stakes had to be repaid and he was accountable for 75% of that amount. He also referred to the case of RIU v Lawrence and submitted that any penalty imposed upon him should be based on the penalties given in that case.
Mr Payne also told the Committee that he had changed the meat supplier as soon as he had learned of the positive swabs.
Appeal Submissions by Mr Payne
3.1 The first submission was that the Appeal was based on the severity of the penalty imposed on Mr Payne when compared with other drug related cases.
He said that he had bought the meat from a registered meat supplier and this was after he had made a number of enquiries about who to purchase meat from. He also noted that Mr Cleaver the proprietor of Down Cow Ltd had previously raced Greyhounds and accordingly he would have been aware of the need for contamination free meat. He further pointed to a number of other Trainers using meat from Down Cow Ltd and he also pointed to the fact that he had asked Mr Cleaver for the best quality meat and had paid the appropriate price for such meat.
3.2 Mr Payne then drew comparisons between his case and that of RIU v Lawrence and said that firstly in the Lawrence case the supplier of the kibble also supplied other products, that the drug in the Lawrence case was a category 1 drug whereas in his case it was a category 5 and that the penalties imposed in his case were the same for each positive swab whereas in Lawrence the Committee had taken the view that the positive swabs arose out of one batch of product and therefore had imposed a higher penalty for the first positive and lesser penalties for the next two. Mr Payne said the same reasoning should have been applied to his positive swabs.
3.3 Mr Payne also submitted to the Tribunal that the penalties imposed upon Mr Lawrence both at the initial Hearing and on Appeal were less than that imposed upon Mr Payne despite the similarities between the two cases and also the difference in the categories of drugs involved.
3.4 Mr Payne also said that he had a Greyhound swabbed on the 18th day of January 2015 and the 15th day of February 2015 and both of those swabs were clear. At that time he had used the initial batch of meat and he was then on his second or third batch. Mr Payne advised the Committee that a batch of meat lasts two weeks and as far as he was concerned the initial batch that he had used must have been contaminated.
Appeal Submissions from Mr Grimstone
4.1 Mr Grimstone submitted that this matter is an appeal on Penalty only and the facts of the situation have been covered in some detail at the initial penalty Hearing at Rotorua Race Course on the 27th day of March 2015. They are also further explored in the Judicial Control Authority decision of the 7th day of April 2015. He did not intend to repeat those facts.
4.2 It was agreed by all parties that the matter would be dealt with by way of monetary fine. The JCA Committee agreed and fined Mr Payne $1,500.00 on each of the three charges with a total of $4,500.00
4.3 A separate matter was the repayment of stake monies earned which totalled $4,920.00 which is not in dispute.
4.4 Mr Grimstone further submitted that the Racing Integrity Unit’s position on this penalty has not changed and he believed that a cumulative monetary penalty of $6,000.00 was fair and reasonable in the circumstances.
4.5 On the 1st day of September 2014 the Board of Greyhound Racing New Zealand gave approval for new penalties in 5 different categories. These were published in the Official Information’s Bulleting issue 376 of August 2014 of Greyhound racing New Zealand. Procaine is a category 5 Prohibited Substance. In this category the recommendation is for a penalty of disqualification of 3 months and/or a fine of $4,000.00, as a starting point. The purpose of the new penalty regime is to encourage diligence and compliance with the Rules.
4.6 Mr Grimstone submitted that as previously stated, this has the Appellant potentially liable for a cumulative fine of $12,000.00 for these three offences.
4.7 It is agreed that there were a number of mitigating features which have been outlined. These features therefore placing the Appellant’s culpability in the negligent category and therefore mid to low range.
4.8 The RIU acknowledged this in their original penalty submissions which in effect offered a 50% discount for these factors when requesting a fine of no less than $6,000.00.
4.9 Mr Grimstone submitted that the relevant four principles of sentencing can be summarised briefly as follows:
(a) Penalties are designed to punish the offender for his/her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence, but the offender must be met with a punishment;
(b) In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences;
(c) A penalty should also reflect the disapproval of the Judicial Committee for the type of behaviour in question;
(d) The need to rehabilitate the offender should also be taken into account.
The principals set out in (a) to (c) are of particular importance in the present case.
4.10 This matter has no similarities with the Lawrence case, as this was a Trainer who was feeding his animal a bona fide, dry and pre-packages reputable feed from a recognised and accredited Australian supplier. In the Lawrence case and other pending, it just so happened that a number of batches of this feed was contaminated in Australia and were fed by Lawrence and others in good faith. They had all taken due care and diligence in their feeding regimes.
4.11 Each case is heard on its merits and have very much case specific points and once again this point is reference to the Lawrence case which as mentioned in previous paragraphs does not apply.
4.12 The key difference in this point is the drug involved in each case. The penalties differ because it is a situation of Morphine v Procaine.
4.13 This point is that as a Trainer you must ensure absolute quality and credibility of your food supplier and in this case the Appellant obtained a batch of meat from a supplier that also deals in carcases that have been treated with Procaine/Penicillin.
4.14 In conclusion Mr Grimstone submitted that the Racing Integrity Unit’s position remains the same and that it invites the Appeals Committee under Rule 97.2(b)(i) which provides:
“9.2 in the case of an appeal against penalty, the Appeals Tribunal may:
(b) if the Penalty (either in whole or part) is one which the Tribunal imposing it had no jurisdiction to impose, or is one which is manifestly excessive or inadequate or inappropriate, either;
(i) quash the Penalty and impose such other Penalty permitted by these Rules (whether more or less severe) in substitution therefore as the Appeals Tribunal thinks ought to have been imposed or deal with the Appellant in any other way that the Judicial Committee could have dealt with him/her on finding the information proved”
to quash the original penalty and impose what the Racing Integrity Unit believes is a sentence which is in keeping with the offending to no less than $6,000.00 which would equate to $2,000.00 per charge. This position, as previously stated, allows for a 50% discount and reflects the medium/low culpability of the Appellant.
4.15 Mr Grimstone submitted that at the very least there appears to be no credible grounds for any reduction from the original penalty and he would urge this Committee not to “tinker” with the original decision and under Rule 97.2(a) which provides:
“97.2 in the case of an appeal against Penalty the Appeals Tribunal may:
Confirm the penalty and dismiss the appeal:”
If it is their agreed position to confirm the penalty and dismiss the Appeal.
4.16 Mr Grimstone advised that the Racing Integrity Unit was not seeking costs.
Response from Mr Payne
5.1 Mr Payne disputed Mr Grimstone’s point in 4.10 above where he advised that the RIU believed that there is no comparison between his case and that of Arch Lawrence case. He strongly disagreed with this and felt that the cases were very similar.
5.2 Mr Payne submitted that just because in the Lawrence case it was a bona fide and pre packed dry food there is no difference to buying meat from a registered meat supplier in New Zealand that also supplies other Trainer’s and races Greyhounds himself. The fact of the matter is in all the cases the Trainers have paid for a product and not received the intended product which the Supplier is selling. Both products that where brought were unfit for the end use. The only difference is the contamination is one being a category 1 (10 years) and the other being a category 5 (3 months).
5.3 Mr Payne further submitted that the point the RIU was making about the meat supplier also selling other products (Procaine/Penicillin) is irrelevant just like the kibble supplier, the Company also sells other products (morphine). This he believes is the points to why he believed that these two cases were similar.
5.4 Mr Payne also pointed out that in the original findings with Lawrence case, when the source of the contamination was unknown the findings were lesser than his and the 2nd and 3rd offences were discounted. Mr Payne believed this case is no different and his 2nd and 3rd offences should be discounted as well.
5.5 Keeping in mind the Appeal in the Lawrence case found further reduction in the fines with the same trend 2nd and 3rd offence reduced. He would also like the Committee to consider that he presented 3 cases in Australia for Procaine/Penicillin in with the Trainers were fine $400, $500 and $500.
Further Submissions from Mr Grimstone
6.1 The position of the RIU as is set out in the above submissions.
6.2 Mr Grimstone then said that the Lawrence case was not similar to Mr Payne’s case because it was a result of contaminated batch of dry feed and that the feed itself which had previously been used by Trainers over a two year period. He said that Mr Payne had chosen to use meat from a supplier who not only deals with good meat but also deals with contaminated meat. He said that the processes had fallen down in this case and that was the risk that Mr Payne took.
6.3 As far as Mr Grimstone was concerned this was the major difference between Mr Lawrence’s case and Mr Payne’s case.
6.4 Mr Grimstone said that any overseas decisions in relation to meat contamination had no bearing on the New Zealand position. He pointed to the fact that Greyhound Racing New Zealand had imposed categories relating to drugs as at the 1st of September 2014.
6.5 Mr Grimstone said that as far as the RIU is concerned the original penalty handed down by the JCA Committee was light. He said that the starting point was $4,000.00 per case and he asked the Tribunal not to “tinker” with the original Decision and to dismiss the Appeal.
6.6 Mr Grimstone further said that as far as the RIU was concerned mitigating factors had been taken into account with its submissions and he submitted that a 50% discount from the starting point of $12,000.00 was fair and reasonable.
Discussion
7.1 The Tribunal had further discussion with Mr Grimstone concerning his assertion that the Lawrence and Payne situations were different. He confirmed that Mr Lawrence was feeding packaged dry feed from a reputable supplier who was supplying the feed via the Waikato Greyhound Racing Association. He believed that the manufacturer of the product was reputable manufacturer and that the product had been used for feeding Greyhounds for a number of years without any problem. He pointed again to the fact that it was sold via the Waikato Greyhound Racing Association and another reputable outlet in Te Awamutu.
7.2 In response to a question from the Tribunal, Mr Grimstone could not give any explanation as to why the batch of kibble fed by Mr Lawrence was contaminated with morphine and this resulted in not only in 3 positive swabs for Mr Lawrence but at least four others for other Trainers.
The Tribunal notes that in the original Lawrence Decision there was a suggestion of a possibility of contamination because products were kept in bins and one bin was found to have poppy seeds and it was assumed at the original Hearing that this was the cause of the contamination.
7.3 The RIU’s position was that Mr Lawrence was buying a packaged product from a reputable supplier and that begged the question, “what else could he do”. He bought the product completely unaware that it was contaminated.
7.4 In Mr Payne’s case Mr Grimstone drew a distinction with Lawrence on the basis that Mr Payne was purchasing from a supplier of meats of three different grades. He said that he had inspected the premises of Down Cow Ltd and that it was a licensed operator and although it had good systems in place he said that it appeared to have fallen down in this case. He said that it was likely that Mr Payne had received a contaminated batch of meat which he fed to his Greyhounds.
7.5 Mr Grimstone reiterated that Mr Payne took a risk in dealing with a supplier who supplied not only good meat but also contaminated meat. That was the risk that Mr Payne took and that was his problem notwithstanding that he had asked for and paid for first grade meat.
Reasons for Decision
8.1 In pursuing his Appeal, Mr Payne has relied on all the steps that he has taken to feed his Greyhounds properly. We note from the original Decision that Mr Payne runs a well-controlled premises for his Greyhounds and conducts his racing activities properly. When he was required to change meat supplier he made proper enquiries before he purchased meat from Down Cow Ltd. When he purchased the meat he was aware that there were three categories of meat and he specifically asked for the best quality meat being the grade 1 category premium beef mince and that is what he thought he was receiving. Bearing in mind that the three positive swabs came in a 12 day period and also taking into account that the swabs on the 18th day of January 2015 and the 15th day of February 2015 were negative it is very clear to us that Mr Payne was given first grade meat but that the first batch that he used was contaminated.
8.2 Mr Payne has submitted that he could do nothing further to ensure that his Greyhounds raced free of any Prohibited Substance, he drew our attention to the difference in categories of drugs in the Lawrence case and in his case and he also pointed to the fact that the fines imposed upon him were greater than in the Lawrence case. He reminded us that he had to contribute to the repayment of the stakes and he told us that the penalties imposed upon him were excessive.
8.3 Mr Grimstone tried to draw a distinction between Mr Payne’s situation and that of Mr Lawrence. This is set out above. We do not agree with Mr Grimstone that there is a distinction between the present case and Mr Lawrence’s case. Both are reputable Trainers, they purchased the feed from reputable sources and neither of them could have done anything better. We do not agree that Mr Payne took a risk in dealing with Down Cow Ltd bearing in mind all of the enquiries that he had made which showed other reputable Trainers were using their product, bearing in mind that one of the four batches of meat appears to have been contaminated and bearing in mind that there is no evidence of any prior positive swabs resulting from meat purchased from Down Cow Ltd.
In our view there is no difference between Payne and Lawrence and Mr Payne should be treated accordingly.
8.4 Just as in the Lawrence case the breach by Mr Payne is properly described as an offence for which absence of fault or culpable conduct on the part of the person charged is no defence. That means that Mr Payne is liable for the positive swabs although there is no fault or culpable conduct on his part.
8.5 In view of the fact that this Appeal Tribunal has found that there is no difference between Mr Payne and Mr Lawrence then it follows that the reasons set out in the Lawrence Appeal Decision should apply to the within case. Those reasons were extensively set out in that Decision and there is no need for this Tribunal to repeat those reasons verbatim.
The reasons are extensive and clearly apply to Mr Payne’s situation.
Decision
9.1 For the reasons set out above the Appeal by Mr Payne is allowed and the fines imposed by the Judicial Committee are quashed. In substitution therefore Mr Payne is fined the sum of $2,000.00 made up of a fine of $1,000.00 on the 1st charge that he admitted and $500.00 on each of the other two charges that he admitted.
9.2 The orders for disqualification of the Greyhounds made by the Judicial Committee and repayment and distribution of stake winnings remain unchanged.
9.3 This Tribunal does not believe that it is appropriate to make any order as to costs and therefore there will be no orders as to costs.
Dated this 5th day of June 2015
BJ SCOTT AJ DOOLEY
Chair Tribunal Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 09/06/2015
Publish Date: 09/06/2015
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 09/06/2015
hearing_title: Appeal SJ Payne v RIU - Decision dated 5 June 2015
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appealdecision: NO LINKED APPEAL DECISION
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reasonsfordecision:
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
HELD AT CAMBRIDGE RACEWAY CAMBRIDGE
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr SCOTT JOHN PAYNE Licenced Trainer NZGRA
Appellant
AND RACING INTEGRITY UNIT (RIU)
Mr N GRIMSTONE – (Chief Investigator) appearing
Respondent
Appeals Tribunal Mr BJ Scott, Chairman - Mr AJ Dooley, Member of Tribunal
Appearing: The Appellant in person;
Mr N Grimstone for the Respondent
Registrar - Mr A Cruickshank (RIU Investigator)
DECISION OF APPEALS TRIBUNAL
Introduction
1.1 On the 27th of March 2015 before a Judicial Committee appointed by the Judicial Control Authority for Racing, Mr Payne admitted three charges brought against him under Rules 87.1 and 87.3 of the Rules of NZ Greyhound Racing.
The charges alleged as follows:
(a) That on the 24th day of December 2014 Mr Payne as Trainer of the Greyhound ROTOVEGAS RARA presented the said Greyhound which was found to have administered to it the category 5 prohibited substance Procaine.
(b) That on the 2nd day of January 2015 Mr Payne as Trainer of the Greyhound ROTOVEGAS RAT presented the said Greyhound which was found to have administered to it the category 5 prohibited substance Procaine.
(c) That on the 4th day of January 2015 at a Meeting conducted by the Auckland Greyhound Racing Club at Manukau Stadium Raceway Mr Payne as Trainer of the Greyhound ROTOVEGAS RARA presented the said Greyhound which was found to have administered to it the category 5 prohibited substance Procaine
1.2 Following the Hearing and evidence and submissions presented to it by both the Racing Integrity Unit and Mr Payne in relation to penalty, the Judicial Committee in a written Decision delivered on the 7th day of April 2015 imposed fines on Mr Payne totalling $4,500.00 being specified as $1,500.00 on each of the three charges.
1.3 The Greyhounds were disqualified from the races as follows:
(i) ROTOVEGAS RARA was disqualified from the Race it won at the Waikato Racing Club’s Meeting on the 24th day of December 2014. The winning stake for that Race was $1,440.00.
(ii) ROTOVEGAS RAT was disqualified from the Race it won at the Waikato Racing Club’s Meeting on the 2nd day of January 2015. The winning stake for that Race was $1,320.00.
(iii) ROTOVEGAS RARA was disqualified from the Race it won at the Auckland Greyhound Racing Club’s Meeting on the 4th day of January 2015. The winning stake for that Race was $2,160.00.
1.4 On the 13th day of April 2015 Mr Payne lodged an Appeal against the Decision of the Judicial Committee. This was an Appeal against penalty only and was against the severity of the fine that was imposed.
1.5 Mr Payne was asked to provide more detailed grounds of his Appeal and he responded as follows:
(a) I feel this should be treated as one contamination over a period of 12 days. Therefore I believe the 2nd and 3rd offences should be at a discounted rate. As in GA Lawrence case 1st offence $2,000.00, 2nd offence $1,000.00, 3rd offence $1,000.00.
(b) I don’t understand how a category 1 (up to 10 years disqualification) can get fined less than a category 5 (up to 4 months disqualification) total fine $4,500 cat 1 $4,000.00 cat 5.
(c) Keeping in mind the 7 morphine swabs are no different to my case apart from the difference in category class drugs. The kibble was tested but at the time the actual kibble feed had all been fed out just like my meat. In the public eye how would this look if either a cat 5 class drug got no fines and for the same reasons a cat 1 got fined or the other outcome would be cat 5 getting a lesser fine of that of a cat 1 drug? This seems wrong to me.
(d) The question I ask is, what could I have done differently that would have stopped this from happening.
JCA Decision
2.1 The Tribunal had available to it the original Decision in this matter dated the 7th day of April 2015. The Decision was both extensive and helpful.
2.2 The submissions from Mr Grimstone recorded in that Decision were that as far as the RIU were concerned there was no deliberate administration by Mr Payne. A further submission was that three positive tests over a period of 12 days may indicate an accidental administration.
In a further submission Mr Grimstone had stated that “in his opinion it was most likely that meat from Down Cow Ltd which Mr Payne had fed his dogs had been contaminated”.
2.3 Mr Payne at the substantive Hearing had told the Committee that in November 2014 his existing supplier of meat could no longer continue to supply. He had made enquiries of other Trainers and it was recommended to him that he buy his meat from Alan Cleaver of Down Cow Ltd. That Company had three grades of meat and Mr Payne had told the Committee that he had spoken with Mr Cleaver and had told him that he had six Greyhounds and he wanted the best meat possible. He said he wanted the same meat as was being supplied to leading Trainers of Greyhounds in the country.
Mr Payne told the Committee that $4,920.00 in stakes had to be repaid and he was accountable for 75% of that amount. He also referred to the case of RIU v Lawrence and submitted that any penalty imposed upon him should be based on the penalties given in that case.
Mr Payne also told the Committee that he had changed the meat supplier as soon as he had learned of the positive swabs.
Appeal Submissions by Mr Payne
3.1 The first submission was that the Appeal was based on the severity of the penalty imposed on Mr Payne when compared with other drug related cases.
He said that he had bought the meat from a registered meat supplier and this was after he had made a number of enquiries about who to purchase meat from. He also noted that Mr Cleaver the proprietor of Down Cow Ltd had previously raced Greyhounds and accordingly he would have been aware of the need for contamination free meat. He further pointed to a number of other Trainers using meat from Down Cow Ltd and he also pointed to the fact that he had asked Mr Cleaver for the best quality meat and had paid the appropriate price for such meat.
3.2 Mr Payne then drew comparisons between his case and that of RIU v Lawrence and said that firstly in the Lawrence case the supplier of the kibble also supplied other products, that the drug in the Lawrence case was a category 1 drug whereas in his case it was a category 5 and that the penalties imposed in his case were the same for each positive swab whereas in Lawrence the Committee had taken the view that the positive swabs arose out of one batch of product and therefore had imposed a higher penalty for the first positive and lesser penalties for the next two. Mr Payne said the same reasoning should have been applied to his positive swabs.
3.3 Mr Payne also submitted to the Tribunal that the penalties imposed upon Mr Lawrence both at the initial Hearing and on Appeal were less than that imposed upon Mr Payne despite the similarities between the two cases and also the difference in the categories of drugs involved.
3.4 Mr Payne also said that he had a Greyhound swabbed on the 18th day of January 2015 and the 15th day of February 2015 and both of those swabs were clear. At that time he had used the initial batch of meat and he was then on his second or third batch. Mr Payne advised the Committee that a batch of meat lasts two weeks and as far as he was concerned the initial batch that he had used must have been contaminated.
Appeal Submissions from Mr Grimstone
4.1 Mr Grimstone submitted that this matter is an appeal on Penalty only and the facts of the situation have been covered in some detail at the initial penalty Hearing at Rotorua Race Course on the 27th day of March 2015. They are also further explored in the Judicial Control Authority decision of the 7th day of April 2015. He did not intend to repeat those facts.
4.2 It was agreed by all parties that the matter would be dealt with by way of monetary fine. The JCA Committee agreed and fined Mr Payne $1,500.00 on each of the three charges with a total of $4,500.00
4.3 A separate matter was the repayment of stake monies earned which totalled $4,920.00 which is not in dispute.
4.4 Mr Grimstone further submitted that the Racing Integrity Unit’s position on this penalty has not changed and he believed that a cumulative monetary penalty of $6,000.00 was fair and reasonable in the circumstances.
4.5 On the 1st day of September 2014 the Board of Greyhound Racing New Zealand gave approval for new penalties in 5 different categories. These were published in the Official Information’s Bulleting issue 376 of August 2014 of Greyhound racing New Zealand. Procaine is a category 5 Prohibited Substance. In this category the recommendation is for a penalty of disqualification of 3 months and/or a fine of $4,000.00, as a starting point. The purpose of the new penalty regime is to encourage diligence and compliance with the Rules.
4.6 Mr Grimstone submitted that as previously stated, this has the Appellant potentially liable for a cumulative fine of $12,000.00 for these three offences.
4.7 It is agreed that there were a number of mitigating features which have been outlined. These features therefore placing the Appellant’s culpability in the negligent category and therefore mid to low range.
4.8 The RIU acknowledged this in their original penalty submissions which in effect offered a 50% discount for these factors when requesting a fine of no less than $6,000.00.
4.9 Mr Grimstone submitted that the relevant four principles of sentencing can be summarised briefly as follows:
(a) Penalties are designed to punish the offender for his/her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence, but the offender must be met with a punishment;
(b) In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offences;
(c) A penalty should also reflect the disapproval of the Judicial Committee for the type of behaviour in question;
(d) The need to rehabilitate the offender should also be taken into account.
The principals set out in (a) to (c) are of particular importance in the present case.
4.10 This matter has no similarities with the Lawrence case, as this was a Trainer who was feeding his animal a bona fide, dry and pre-packages reputable feed from a recognised and accredited Australian supplier. In the Lawrence case and other pending, it just so happened that a number of batches of this feed was contaminated in Australia and were fed by Lawrence and others in good faith. They had all taken due care and diligence in their feeding regimes.
4.11 Each case is heard on its merits and have very much case specific points and once again this point is reference to the Lawrence case which as mentioned in previous paragraphs does not apply.
4.12 The key difference in this point is the drug involved in each case. The penalties differ because it is a situation of Morphine v Procaine.
4.13 This point is that as a Trainer you must ensure absolute quality and credibility of your food supplier and in this case the Appellant obtained a batch of meat from a supplier that also deals in carcases that have been treated with Procaine/Penicillin.
4.14 In conclusion Mr Grimstone submitted that the Racing Integrity Unit’s position remains the same and that it invites the Appeals Committee under Rule 97.2(b)(i) which provides:
“9.2 in the case of an appeal against penalty, the Appeals Tribunal may:
(b) if the Penalty (either in whole or part) is one which the Tribunal imposing it had no jurisdiction to impose, or is one which is manifestly excessive or inadequate or inappropriate, either;
(i) quash the Penalty and impose such other Penalty permitted by these Rules (whether more or less severe) in substitution therefore as the Appeals Tribunal thinks ought to have been imposed or deal with the Appellant in any other way that the Judicial Committee could have dealt with him/her on finding the information proved”
to quash the original penalty and impose what the Racing Integrity Unit believes is a sentence which is in keeping with the offending to no less than $6,000.00 which would equate to $2,000.00 per charge. This position, as previously stated, allows for a 50% discount and reflects the medium/low culpability of the Appellant.
4.15 Mr Grimstone submitted that at the very least there appears to be no credible grounds for any reduction from the original penalty and he would urge this Committee not to “tinker” with the original decision and under Rule 97.2(a) which provides:
“97.2 in the case of an appeal against Penalty the Appeals Tribunal may:
Confirm the penalty and dismiss the appeal:”
If it is their agreed position to confirm the penalty and dismiss the Appeal.
4.16 Mr Grimstone advised that the Racing Integrity Unit was not seeking costs.
Response from Mr Payne
5.1 Mr Payne disputed Mr Grimstone’s point in 4.10 above where he advised that the RIU believed that there is no comparison between his case and that of Arch Lawrence case. He strongly disagreed with this and felt that the cases were very similar.
5.2 Mr Payne submitted that just because in the Lawrence case it was a bona fide and pre packed dry food there is no difference to buying meat from a registered meat supplier in New Zealand that also supplies other Trainer’s and races Greyhounds himself. The fact of the matter is in all the cases the Trainers have paid for a product and not received the intended product which the Supplier is selling. Both products that where brought were unfit for the end use. The only difference is the contamination is one being a category 1 (10 years) and the other being a category 5 (3 months).
5.3 Mr Payne further submitted that the point the RIU was making about the meat supplier also selling other products (Procaine/Penicillin) is irrelevant just like the kibble supplier, the Company also sells other products (morphine). This he believes is the points to why he believed that these two cases were similar.
5.4 Mr Payne also pointed out that in the original findings with Lawrence case, when the source of the contamination was unknown the findings were lesser than his and the 2nd and 3rd offences were discounted. Mr Payne believed this case is no different and his 2nd and 3rd offences should be discounted as well.
5.5 Keeping in mind the Appeal in the Lawrence case found further reduction in the fines with the same trend 2nd and 3rd offence reduced. He would also like the Committee to consider that he presented 3 cases in Australia for Procaine/Penicillin in with the Trainers were fine $400, $500 and $500.
Further Submissions from Mr Grimstone
6.1 The position of the RIU as is set out in the above submissions.
6.2 Mr Grimstone then said that the Lawrence case was not similar to Mr Payne’s case because it was a result of contaminated batch of dry feed and that the feed itself which had previously been used by Trainers over a two year period. He said that Mr Payne had chosen to use meat from a supplier who not only deals with good meat but also deals with contaminated meat. He said that the processes had fallen down in this case and that was the risk that Mr Payne took.
6.3 As far as Mr Grimstone was concerned this was the major difference between Mr Lawrence’s case and Mr Payne’s case.
6.4 Mr Grimstone said that any overseas decisions in relation to meat contamination had no bearing on the New Zealand position. He pointed to the fact that Greyhound Racing New Zealand had imposed categories relating to drugs as at the 1st of September 2014.
6.5 Mr Grimstone said that as far as the RIU is concerned the original penalty handed down by the JCA Committee was light. He said that the starting point was $4,000.00 per case and he asked the Tribunal not to “tinker” with the original Decision and to dismiss the Appeal.
6.6 Mr Grimstone further said that as far as the RIU was concerned mitigating factors had been taken into account with its submissions and he submitted that a 50% discount from the starting point of $12,000.00 was fair and reasonable.
Discussion
7.1 The Tribunal had further discussion with Mr Grimstone concerning his assertion that the Lawrence and Payne situations were different. He confirmed that Mr Lawrence was feeding packaged dry feed from a reputable supplier who was supplying the feed via the Waikato Greyhound Racing Association. He believed that the manufacturer of the product was reputable manufacturer and that the product had been used for feeding Greyhounds for a number of years without any problem. He pointed again to the fact that it was sold via the Waikato Greyhound Racing Association and another reputable outlet in Te Awamutu.
7.2 In response to a question from the Tribunal, Mr Grimstone could not give any explanation as to why the batch of kibble fed by Mr Lawrence was contaminated with morphine and this resulted in not only in 3 positive swabs for Mr Lawrence but at least four others for other Trainers.
The Tribunal notes that in the original Lawrence Decision there was a suggestion of a possibility of contamination because products were kept in bins and one bin was found to have poppy seeds and it was assumed at the original Hearing that this was the cause of the contamination.
7.3 The RIU’s position was that Mr Lawrence was buying a packaged product from a reputable supplier and that begged the question, “what else could he do”. He bought the product completely unaware that it was contaminated.
7.4 In Mr Payne’s case Mr Grimstone drew a distinction with Lawrence on the basis that Mr Payne was purchasing from a supplier of meats of three different grades. He said that he had inspected the premises of Down Cow Ltd and that it was a licensed operator and although it had good systems in place he said that it appeared to have fallen down in this case. He said that it was likely that Mr Payne had received a contaminated batch of meat which he fed to his Greyhounds.
7.5 Mr Grimstone reiterated that Mr Payne took a risk in dealing with a supplier who supplied not only good meat but also contaminated meat. That was the risk that Mr Payne took and that was his problem notwithstanding that he had asked for and paid for first grade meat.
Reasons for Decision
8.1 In pursuing his Appeal, Mr Payne has relied on all the steps that he has taken to feed his Greyhounds properly. We note from the original Decision that Mr Payne runs a well-controlled premises for his Greyhounds and conducts his racing activities properly. When he was required to change meat supplier he made proper enquiries before he purchased meat from Down Cow Ltd. When he purchased the meat he was aware that there were three categories of meat and he specifically asked for the best quality meat being the grade 1 category premium beef mince and that is what he thought he was receiving. Bearing in mind that the three positive swabs came in a 12 day period and also taking into account that the swabs on the 18th day of January 2015 and the 15th day of February 2015 were negative it is very clear to us that Mr Payne was given first grade meat but that the first batch that he used was contaminated.
8.2 Mr Payne has submitted that he could do nothing further to ensure that his Greyhounds raced free of any Prohibited Substance, he drew our attention to the difference in categories of drugs in the Lawrence case and in his case and he also pointed to the fact that the fines imposed upon him were greater than in the Lawrence case. He reminded us that he had to contribute to the repayment of the stakes and he told us that the penalties imposed upon him were excessive.
8.3 Mr Grimstone tried to draw a distinction between Mr Payne’s situation and that of Mr Lawrence. This is set out above. We do not agree with Mr Grimstone that there is a distinction between the present case and Mr Lawrence’s case. Both are reputable Trainers, they purchased the feed from reputable sources and neither of them could have done anything better. We do not agree that Mr Payne took a risk in dealing with Down Cow Ltd bearing in mind all of the enquiries that he had made which showed other reputable Trainers were using their product, bearing in mind that one of the four batches of meat appears to have been contaminated and bearing in mind that there is no evidence of any prior positive swabs resulting from meat purchased from Down Cow Ltd.
In our view there is no difference between Payne and Lawrence and Mr Payne should be treated accordingly.
8.4 Just as in the Lawrence case the breach by Mr Payne is properly described as an offence for which absence of fault or culpable conduct on the part of the person charged is no defence. That means that Mr Payne is liable for the positive swabs although there is no fault or culpable conduct on his part.
8.5 In view of the fact that this Appeal Tribunal has found that there is no difference between Mr Payne and Mr Lawrence then it follows that the reasons set out in the Lawrence Appeal Decision should apply to the within case. Those reasons were extensively set out in that Decision and there is no need for this Tribunal to repeat those reasons verbatim.
The reasons are extensive and clearly apply to Mr Payne’s situation.
Decision
9.1 For the reasons set out above the Appeal by Mr Payne is allowed and the fines imposed by the Judicial Committee are quashed. In substitution therefore Mr Payne is fined the sum of $2,000.00 made up of a fine of $1,000.00 on the 1st charge that he admitted and $500.00 on each of the other two charges that he admitted.
9.2 The orders for disqualification of the Greyhounds made by the Judicial Committee and repayment and distribution of stake winnings remain unchanged.
9.3 This Tribunal does not believe that it is appropriate to make any order as to costs and therefore there will be no orders as to costs.
Dated this 5th day of June 2015
BJ SCOTT AJ DOOLEY
Chair Tribunal Member
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