Non Raceday Inquiry RIU v J Goode – Decision as to Penalty dated 31 May 2017 – Chair, Prof G Hall

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decisiondate: 31/05/2017

hearing_title: Non Raceday Inquiry RIU v J Goode - Decision as to Penalty dated 31 May 2017 - Chair, Prof G Hall

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND Mr John Goode

Licensed Greyhound Trainer

Respondent

Information No. A7212 to A7216

Judicial Committee: Prof G Hall, Chairman

Mr R McKenzie, Member of Committee

Appearing: Mr D Matthews and Mr P Lamb, for the Informant

The Respondent in person, with the assistance of Mr B Cuttance

DECISION OF JUDICIAL COMMITTEE AS TO PENALTY

[1] The respondent, Mr Goode, is a licensed Public Trainer under the New Zealand Greyhound Rules of Racing. He has been licensed in the Greyhound industry for more than 12 years.

[2] In our decision of 12 April last, we found the following Informations to be proved:

Information No A7212: THAT, on 25 November 2016 at a race meeting conducted by Christchurch Greyhound Racing Club at Addington Mr Goode misconducted himself by abusing and using foul language to RIU Investigator, Mrs K Williams. This is a breach of r 87.1.o of the Greyhound Racing New Zealand Rules of Racing.

Information No A7213: THAT, on 25 November 2016 at a race meeting conducted by Christchurch Greyhound Racing Club at Addington Mr Goode refused to provide a urine sample when requested and refused to sign the notification form requesting such sample. This is a breach of r 87.4.a of the Greyhound Racing New Zealand Rules of Racing.

Information No A7214: THAT, on 25 November 2016 at a race meeting conducted by Christchurch Greyhound Racing Club at Addington Mr Goode failed to wear a tie as per the Club’s dress code. This is a breach of r 87.1.y of the Greyhound Racing New Zealand Rules of Racing.

Information No A7215: THAT, on 25 November 2016 at a race meeting conducted by Christchurch Greyhound Racing Club at Addington Mr Goode failed to obey the lawful order of Stipendiary Steward, Mr S Wallis. This is a breach of r 87.1.p of the Greyhound Racing New Zealand Rules of Racing.

Information No 7216: THAT, on 25 November 2016 at a race meeting conducted by Christchurch Greyhound Racing Club at Addington Mr Goode abused Stipendiary Steward, Mr S Wallis in the kennel block area of Addington Raceway. This is a breach of r 87.1.g of the Greyhound Racing New Zealand Rules of Racing.

[3] The penalty rule is r 88.1. This 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.

[4] We required the parties to provide written submissions as to penalty.

[5] We received the informant’s submissions on 26 April and separate submissions from Mr Goode on 10 May and from Mr Cuttance, who has been assisting the respondent, on 11 May.

[6] The informant has submitted there are four relevant principles of sentencing:

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.

In a racing context, it is extremely important that a penalty has the effect of deterring others from committing like offences.

A penalty should reflect the disapproval of the JCA for the type of behaviour in question.

The need to rehabilitate the offender should be taken into account.

[7] The RIU identified the following precedents with respect to Informations A7212 and A7216 (misconduct towards Racing Investigator, Mrs Williams and Stipendiary Steward, Mr Wallis).

RIU v McPhee (6 December 2011) — GRNZ trainer charged with abusing/threatening a Racing Investigator [we note the language used is not disclosed in the decision] — 40-year unblemished record — 6 months’ disqualification;

RIU v Hodgson (4 March 2015) – GRNZ trainer used offensive language to a Steward — $400 fine (starting point $650) — amended charge admitted — lengthy unblemished record;

RIU v Weir (19 April 2017) — GRNZ trainer used offensive language to a Steward — (use of words f**k and f**king as expletives) — upset at injury to dog — 2nd breach — admitted — remorse — fined $500;

RIU v Dickson (11 February 2017) – HRNZ trainer/driver charged with misconduct (offensive language towards a Steward — (use of word f**king as an expletive) and failing to comply with a direction — admitted — breach out of character — fine $850 (starting point $1000).

[8] The RIU sought a monetary fine, with a starting point of $1500 for the abuse of Mrs Williams and period of disqualification or suspension with a starting point of six months for the abuse of Mr Wallis.

[9] The RIU identified the following precedents with respect to Information A7213 (failure to comply with a requirement to provide a urine sample).

RIU v Robb (23 March 2014) — 2nd offence — refusing sample — admitted —— respondent stated he was leaving the industry — 6 months’ disqualification;

RIU v Ramage (24 July 2012) — failed to supply sample — dehydrated — defended — 9 months’ suspension;

RIU v Kennett (September 2015) — 2nd offence — failed to supply a sample —admitted — 10 months’ suspension;

RIU v Moka (17 May 2012) — unlicensed track worker – failed to turn up — thought would show cannabis — 7 months’ suspension;

NZTR v Thornton (25 May 2010) — track rider – stated he was not going to supply — 6 months’ disqualification.

[10] The RIU sought a suspension or disqualification with a starting point of 12 months.

[11] With respect to Information A7214 (fails to comply with Club’s dress code), the RIU submitted a fine of $50 was appropriate, as per the Schedule of Minor Infringements for GRNZ, it being a 1st offence.

[12] The RIU identified the following precedents with respect to Information A7215 (fails to obey a lawful order):

RIU v McInerney (August 2014) — GRNZ licence holder charged with failing to obey a direction of a Steward – chose to trial dogs instead of attending Stewards’ Room when directed — fined $300;

RIU v Mann (1 December 2015) — GRNZ trainer charged with failing to comply with a lawful order of a Steward — fined $350.

[13] The RIU sought a monetary fine with a starting point of $500 for this breach.

[14] The RIU acknowledged that the respondent had not previously been charged with any similar offending.

[15] The RIU emphasised that it was expected that licence holders would at all times act professionally, properly and honestly. Any failure to follow the Rules was to be regarded as an affront to not only the Stewards but also to the Greyhound industry. The attitude displayed by Mr Goode throughout this incident was said to be “unprofessional and unwarranted”. His behaviour could at best be described as “belligerent and reprehensible, displaying a total disregard for Stewards and the GRNZ industry rules”. The language that he used towards RIU staff was clearly offensive and insulting, with this language being overheard by civilians at times.

[16] The RIU submitted these breaches of the GRNZ Rules were to be viewed seriously and that any penalty should act as a deterrent to others from behaving in a similar manner. The informant emphasised that Mr Goode had failed to acknowledge his offending throughout and had not shown any remorse.

[17] The facts in this matter were described by the RIU as “clear and disturbing”. Mr Lamb submitted that the level of offending was in the mid to high range and he was seeking penalties to reflect that.

[18] The JCA Penalty Guidelines (2015) were noted not to list starting points for these types of offending in relation to Greyhound Racing. It was submitted that it could thus be inferred that the starting points were “fact dependent”. Both the Harness and Thoroughbred codes had a $1500 starting point for offensive, insulting, abusive language or behaviour to RIU and Administration Officials.

Respondent’s submissions

[19] We have received submissions from both Mr Goode and Mr Cuttance, who has been Mr Goode’s support person. Whilst the provision of two separate submissions is unusual, we have read both sets of submissions.

[20] Mr Cuttance’s submissions as to penalty primarily challenged and disagreed with the findings of this Committee that the breaches of the respective rules had been proved and whilst we have considered these submissions, we have not found them to be helpful in our determining penalty.

[21] Mr Goode emphasised his financial circumstances. He stated he was on a pension, and with that being his sole income, his going to the High Court was beyond his means. We understand this to be a reference to our statement at [109] of our decision of 12 April that his concern that the Registrar had failed in his duty to maintain the Register, as required by s 33(1) of the Incorporated Societies Act 1908, was a matter that that Act dealt with in s 21(4), and that provision was made for application to the High Court. We further note that this course of action remains open to Mr Goode should he be able to satisfy the requirements of that section.

[22] Mr Goode said he was a hobby trainer with three dogs. He had been an owner trainer for over 30 years. He had a clean record. He was “not in the game for money, but for the love of the dog”. He said his involvement in the industry costs him money.

[23] Mr Goode emphasised that “the rule was a fake rule”, and he was “blindsided into being told to do a drug test in front of an audience”. He said, “They got the reaction they deserved.”

[24] With reference to the significance and seriousness of his breaches of the Rules, Mr Goode stated: “The drug testing of licensed persons under the guise of it being safety sensitive is bullshit, they do not employ me, and I will not submit to their standover tactics. I make no apology for my actions on that day, in fact I can now live with myself for standing up to it. I disagree completely that this is a serious matter. What it is, is a bunch of Gestapo that didn't like being told to get f**ked.”

[25] Mr Goode continued by stating he had served a disqualification by way of a warning off from 5 December 2016 to 16 February 2017. This is a matter we will take into account in determining penalty.

[26] Mr Goode said he was in no position to pay any costs or to pay any fines, except the tie charge. He stated his “sole focus now will be looking after three redundant Greyhounds and their associated costs. My sole income is the pension, I have little assets except two run down vehicles.”

[27] Mr Goode concluded his submissions by stating the RIU’s submission that he pay the costs of two sets of lawyers was “outrageous”.

Decision

[28] Mr Goode is to be sentenced for a number of breaches of the Rules, which we found proved in our decision of 12 April. That decision should be read together with this decision.

[29] When we stand back and look at what is the appropriate penalty to hold the respondent accountable and to uphold the integrity of the Rules of Greyhound Racing, we find we are driven to a combination of concurrent and cumulative penalties. Were we not to do so, we believe the accumulation of the penalties would be disproportionate to the charges in respect of which Mr Goode has been found to be in breach.

[30] We state at the outset that we have some sympathy for the predicament in which Mr Goode found himself. There is a foundation to his allegation that GRNZ failed to follow the correct procedure in amending the Rules, in that they had failed to properly notify licence holders of the amendments. Rule 87.4.a was introduced on 1 February 2016 following registration by the Registrar of Incorporated Societies on 19 January 2016. Neither party was able to produce evidence of compliance with r 8 of the Rules of Greyhound Racing. The informant accepted in their submissions as to breach that it was unlikely the necessary notification of the amendment had occurred by way of publication in the industry magazine or placement on the Association’s website. Mr Goode has alleged the Association was dysfunctional at this time and many amendments were not properly notified.

[31] However, in determining whether the respondent had breached r 87.4, we were concerned with the issue — was this rule in force? We answered that question in the affirmative in our decision of 12 April. Nonetheless, it was purely fortuitous that the Incorporated Societies Act 1908 “saved the day” for the informant in that s 21(3) of that Act provides: “[R]egistration shall be conclusive evidence that all conditions precedent to the making of the alteration, or to the registration thereof, have been duly fulfilled.”

[32] Mr Goode had a valid point when he submitted that licence holders were deprived of the opportunity to acquaint themselves with the amendments to the Rules. But that said, this did not justify his actions, particularly when regard is had to the nature of his response to the requirement made by Mrs Williams that he provide a urine sample. His response of using profane language and making a rude finger gesture rather than questioning the basis for Mrs Williams’ requirement that he give a sample is simply not acceptable and, as found in our decision of 12 April, was in breach of the Rules. However, with respect to penalty, this background to the various breaches (other than the breach of the dress code) is a relevant mitigating factor.

[33] In considering whether to disqualify or suspend Mr Goode, we have had regard to the seriousness of the breaches and the consequences for his dogs were a disqualification rather than a suspension to be imposed. We note the informant’s submissions are in the alternative with respect to this issue and we believe the matter can be appropriately dealt with by way of a suspension rather than a disqualification.

[34] We note that Mr Goode has no record of any breaches of the Rules of the kind that are before us today. While we accept the RIU’s submission that a deterrent penalty is required, we place greater emphasis on general rather than specific deterrence because of the respondent’s previous good record. This offending is out of character and Mr Goode’s total absence of remorse for his actions and continued belligerent stance is thus all the more puzzling.

[35] The most serious charge is the failure to provide a urine sample (Information A7213). We do not accept that Mr Goode believed he would not be afforded privacy with respect to this, ie that persons other than the tester would be in the vicinity, or that his being told in the Greyhound office that he was required to provide a sample was an unwarranted affront to his dignity. Kennett is authority for the fact that where there is a difference of gender between tester and respondent, this is not a defence with respect to a refusal and we attach only little weight to any alleged discomfort Mr Goode felt with respect to this aspect of the matter.

[36] The penalties in Kennett and Ramage were suspensions of their horsemen’s licences for ten and nine months, respectively. Ramage was also a defended charge. This was Mr Goode’s first breach of the Rules, whereas Mr Kennett was being sentenced for a second breach. The starting point in Kennett was 12 months’ suspension. Robb was a second offence of failing to provide, and the penalty was six months’ disqualification, in circumstances where the respondent did not attend the hearing and stated he was leaving the industry. Assessing the respondent’s culpability with reference to these cases, we believe a starting point of ten months’ suspension is appropriate. We make a two-month reduction for the unusual circumstances of this case (the failure to notify licence holders as previously described) and the respondent’s clear record under this rule. The suspension is thus one of eight months.

[37] The abuse of Mrs Williams (Information A7212), which occurred within the hearing of a number of industry workers, was clearly a totally inappropriate and an unnecessary over-reaction on the respondent’s part. We are unable to give any credit for remorse with respect to this breach, as Mr Goode has simply demonstrated none. Neither party has been able to draw to the Committee’s attention a case that has similar circumstances. McPhee is relied upon by the respondent. Two charges were laid in that case, but the charge relating to his calling a female licence-holder a “slut” and a “liar” was not proceeded with. The penalty was six months’ disqualification, which was imposed on the charge that related to unspecified abuse of and threats to a (male) deputy Race Course Investigator. Mr Goode, in addition to telling Mrs Williams to “Go get f**ked” on two occasions, made an offensive finger gesture towards her. There is no reference to there being any gestures in McPhee, whilst Mr Goode made no threats to Mrs Williams.

[38] We also have to impose penalty for the abuse of Mr Wallis (Information A7216). In that regard, this case is similar to McPhee. Mr Wallis’s evidence, which we have accepted, was that Mr Goode directed abusive and foul language at him, calling him a “lying wormy c***” and telling him that he “could go and f**k off as well”. Mr Goode continued with the profanities for a brief period then proceeded to verbally threaten Mr Wallis by saying, “You are lucky I don’t whack you now” or words to that effect. Mr Wallis said at this time Mr Goode had his fists up to Mr Wallis’s face; they were about a foot away. He was also that close when he used the foul language.

[39] The breaches in the cases of Hodgson and Weir, where offensive language was used to a Steward, were met with fines of $400 and $500, respectively. The rule in each of those cases was r 87.1.f, and not r 87.1.g. The fine in Dickson, where the charge was misconduct, and the word “f**king” was used as an expletive, including once with reference to a (male) Steward, was $850.

[40] We believe concurrent suspensions of four months for each of the two abuse breaches, cumulative upon the previous eight months’ suspension, is necessary to hold Mr Goode accountable and to denounce his conduct, deter him and others who might think abuse and threats are an appropriate response to a direction from a Steward. Were we sentencing for these two misconduct breaches alone, the suspension would have been at least six months but we have had regard to what is known as “the totality principle” and have stood back and assessed what penalties by way of suspension (and fine) are appropriate in the circumstances of this case to mark the need to uphold the Rules of Greyhound Racing.

[41] We observe that the RIU sought to have the penalties for Informations A7212 and A7216 dealt with cumulatively. These Informations relate to the abuse of different Stewards. As in one case the submitted penalty was a fine and the other a disqualification/suspension, we assume the reference was to Informations A7213 and A7216 (where the submitted penalties were in each case disqualification/suspension). In any case, we have imposed cumulative suspensions on Informations A7212/A7216 and A7213 (misconduct and failure to comply with a requirement to provide a urine sample), as these breaches are clearly different in character. Although the misconduct charges relate to different Stewards and occurred at different times of the day, we believe they have arisen out of the respondent’s loss of temper that day, and thus concurrent suspensions are not inappropriate.

[42] With respect to fines, $50, which would equate to the infringement fee under r 87.3 (sixth schedule “Minor Infringements”), is imposed for Information A7214, the failure to comply with the Club’s dress code. The circumstances of this breach again do not bring any credit to Mr Goode, who upon being advised by Mr Renault, Stipendiary Steward, that he was required to wear a tie, replied he knew the policy but was refusing to wear it. Mr Renault directed Mr Goode to wear a tie and he again refused. He was not wearing a tie when he loaded his dog and we are told that this was clearly evident on Trackside TV.

[43] That leaves the penalty for the failure to comply with directions from Mr Wallis (Information A7215). Relevant cases are Mann and McInerney. The penalties there were fines of $350 and $300. A fine of $300 is appropriate in Mr Goode’s case. Again, if this were the only breach we were to find proved against Mr Goode, the fine would have been higher.

[44] The provisional outcome is thus a penalty of 12 months’ suspension and fines totalling $350. However, we have to take into account that Mr Goode was warned off for some 10 weeks in December 2016 to February 2017. We adopt a little rounding and reduce the period of suspension to 10 months. The suspension commences on 10 June 2017 and concludes on 1 April 2018. We reiterate that were it not for the fact that there had been oversights in the promulgation of the amendments to the Rules of Greyhound Racing, the penalties we would have imposed on Mr Goode would have been significantly higher.

Costs

[45] The RIU have sought costs in the sum of approximately $9000. This includes $4500 in legal fees for preparation and prosecution of the case before this Committee, and $4480.69 by way of GRNZ legal fees from the law firm Simpson Grierson, for confirmation of the validity of the GRNZ Rules and constitution process. The Association are far from blameless in this saga. We have already emphasised that had the amendments to the Rules been properly advertised, Mr Goode and licence holders generally, would have had a significantly greater opportunity to have acquainted themselves with the drug testing rules. We suspect that s 21(3) of the Incorporated Societies Act was a “eureka moment” for the informant. Were there not this provision, we may have found the drug testing rules to have been invalid. An order to meet GRNZ legal fees is not appropriate in such circumstances.

[46] We order costs in the sum of $1800 to the RIU, which is 40 per cent of their legal fees in prosecuting these matters. We believe such a sum to be just and reasonable, having regard to the respondent’s financial circumstances.

[47] With respect to witness expenses, the RIU have sought the payment of $73.10 for each of their four civilian witnesses. This is a calculation based on the District Court Witnesses Fees Regulation ($50 per half day) and travel expenses based on a distance of 30 kms. Rule 66.12 provides that a Committee “may order all or any of the costs and/or expenses of any party to the proceedings of and incidental to the hearing of the Information”. We do not have to determine whether witness costs would come within this provision, as we believe in the particular circumstances of this case an award for expenses of this nature would not be appropriate.

[48] A small contribution to the costs of the JCA is also just and reasonable. There was a full-day hearing of the matter and there have been a number of teleconferences, together with the issuing of the relevant minutes thereafter.

[49] Again, we have regard to Mr Goode’s financial circumstances, and order him to pay costs in the sum of $1500 to the JCA.

Dated at Dunedin this 31st day of May 2017.

Geoff Hall, Chairman

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