Non Raceday Inquiry RIU v G T Bennett – Reserved Decision of Judicial Committee on Penalty dated 1 July 2016 – Chair, Mr R G McKenzie

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decisiondate: 01/07/2016

hearing_title: Non Raceday Inquiry RIU v G T Bennett - Reserved Decision of Judicial Committee on Penalty dated 1 July 2016 - Chair, Mr R G McKenzie

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association

IN THE MATTER of Information No. A5029

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND GRAEME THOMAS BENNETT of Springston, Licensed Public Trainer

Respondent

Judicial Committee: Mr R G McKenzie, Chairman - Mr D J Anderson, Committee Member

Present: Mrs K R Williams, the Informant

Mr G T Bennett, the Respondent

Mr C Muir, Part-Owner

Mr S P Renault, Registrar

Date of Hearing: 28 June 2016

Date of Decision: 1 July 2016

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY

The Charge

[1] Information No. A5029 alleges that, on the 26th April 2016, the Respondent, being the registered trainer of the greyhound DREAM ACADEMY, presented that greyhound to race in Race 2, Christchurch greyhounds.co.nz Dash, at the Christchurch Greyhound Racing Club meeting with a prohibited substance, namely Caffeine, in its system.

[2] Mrs Williams produced a letter from Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 91.2 a.

[3] The information was served on the Respondent on 15th June 2016. He completed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule.

[4] Mr Bennett was present at the hearing of the information and, following the reading of the charge and Rule to him, he confirmed that he admitted the charge.

[5] The charge was found proved accordingly.

The Rule

[6] Rule 86.1 provides as follows:

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.

Rule 86.3 provides as follows:

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 purpose 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.

The Facts

[7] Mrs Williams presented the following written Summary of Facts:

1. The Respondent, Graeme Thomas BENNETT, is a licenced Public Trainer under the Rules of the New Zealand Greyhound Association.

2. On the 26th April 2016, DREAM ACADEMY was correctly entered and presented to race by Mr Bennett in Race 2, the christchurchgreyhounds.co.nz Dash, at the Christchurch Greyhound Racing Club meeting at Addington Raceway.

3. DREAM ACADEMY finished first in the race, winning a stake of $720 which was paid to Mr Bennett. DREAM ACADEMY is owned by Racing Greyhound Breeders (NZ) Limited, G Bennett, C Muir, W Turner and B Turner.

4. Following the race, the greyhound was routinely swabbed in the presence of Mr Bennett and he did not contest the swabbing process.

5. All samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the New Zealand Greyhound Racing Association.

6. On the 10th of May 2016, the New Zealand Racing Laboratory reported in writing that the sample from DREAM ACADEMY had tested positive to Caffeine.

7. Caffeine is a prohibited substance within the meaning of the Rules and its presence in a race day sample is, prima facia, a breach of the Rules. Caffeine is classed as a Category 4 Prohibited Substance that has the ability to improve or impact the performance of a greyhound.

8. Mr Bennett was interviewed at his property in Springston on Thursday, the 12th of May 2016. Mr Bennett was very co-operative and gave the Racecourse Investigators full access to the property.

9. Mr Bennett advised he did not want the reserve sample from the swab tested.

10. Two samples were taken of feed and supplements and forwarded to the New Zealand Racing Laboratory for testing.

11. It was noted that one of the samples “Nutrience Grain Free” clearly showed in the list of Ingredients “Green Tea Extract”.

12. Mr Bennett advised that he used “Nutrience Grain Free” for about two days only before discontinuing with it due to the odour of the product, but that it would have coincided with the positive swab.

13. Mr Bennett sourced the “Nutrience Grain Free” himself and did not make any inquiries regarding the use of this product on racing greyhounds.

14. Mr Bennett confirmed that he was not aware of the previous positive swabs for caffeine that were traced to “Green Tea Extract” (RIU v R Blackburn 18 August 2015 and RIU v B Finn 28 September 2015). This is despite these decisions being widely advertised and talked about in the Industry.

15. The New Zealand Racing Laboratory advised on 14 June 2016 that Caffeine was detected in the sample of “Nutrience Grain Free”.

16. Mr Bennett was informed of the results from the Laboratory in relation to the sample of “Nutrience Grain Free” taken from his property.

17. Mr Bennett has been involved in the racing industry for over 30 years in both Australia and New Zealand as a Greyhound and Harness Racing Trainer and also in an official capacity as a Stipendiary Steward.

18. Mr Bennett has been licensed since August 2014 as a Licenced Breeder then a Public Trainer since May 2015. Mr Bennett has had 87 starts for 10 wins, 6 seconds and 11 3rds for stakes of just over $12,000.

19. Mr Bennett has not had a previous breach of this Rule.

Penalty Submissions of the Informant

[8] Mrs Williams presented the following penalty submissions in writing:

1. Mr Bennett has pleaded guilty to a breach of Rules 86.1 and 86.3 after presenting DREAM ACADEMY at the races with a prohibited substance in its system, namely Caffeine, at the Christchurch GRC race meeting on 26th April 2016.

2. The penalty provisions that apply in this case are outlined in Rule 88.1

Rule 88.1

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.

3. The Rules also require the mandatory disqualification of the greyhound: Rule 86.4 states:

86.4 Any greyhound which competes in a race and is found to be the recipient of a Prohibited Substance shall be disqualified from that race.

4. Sentencing Principles -

The four principals of sentencing can be summarised briefly

• 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 also reflect the disapproval of the JCA for the type of behaviour in question.

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

The first three principles are particularly important here.

5. Relevant Precedents –

In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents.

R.I.U. v B. FINN – 18 August 2015

Subject: Caffeine positive with two Greyhounds (global penalty) – fined $3,500 and Greyhounds disqualified. Positive from Nutrience Grain Free.

R.I.U. v R. BLACKBURN – 18 August 2015

Subject: Caffeine positive with two Greyhounds – fined $4,000 and Greyhounds disqualified, second offence. Positive from Nutrience Hairball – Indoor – cat food.

6. Aggravating Features –

Mr Bennett was negligent in checking the ingredients listed on the product especially as it was not manufactured specifically for racing greyhounds and did not seek advice on the product.

There have been the two Caffeine positive swabs in the last year as listed above after Trainers used Nutrience products. These decisions were widely discussed within the Industry especially given the status of the race in the Finn case, the Group 1 Duke of Edinburgh Silver Collar.

GRNZ regularly put out advisories on their website in regard to feeding and medications and in their recent advisory it stated "Participants must ensure they are aware of the nutritional/ingredients of all food, supplements and medication before you administer them to your dogs.”

In the March 2015 issue of “On Track” - Drug Testing Greyhound Racing. “Over 20 of the 30 Greyhound positives in the past four years are for three drugs, caffeine, procaine and morphine. From its investigations the RIU is concerned that many of these positives are due more to negligence rather than deliberate administration by the trainer…. The RIU has no doubt that a more considered and professional approach to the housing, feeding and treatment regime for greyhounds would substantially reduce the number of positives to these three drugs. The issue is how to reduce the number of positives caused by negligence in the future. The answer is twofold, firstly provide a significant deterrent by way of penalty and secondly underpin this with education to help trainers better manage their kennels. The RIU has supported NZGRA lifting penalties to act as a deterrent. The following are simple steps and checks that trainers should take:

1. Feed - Always check the makeup of food provided to dogs.”

7. Mitigating Factors –

There was no malicious intent. Mr Bennett maintains a very professional kennel that is of the highest standard. This is purely a case of negligence albeit at the highest level as the ingredients were clearly labelled.

Mr Bennett admitted the breach at the first opportunity and has co-operated fully throughout the investigation.

It is conceded that, over Mr Bennett’s thirty-plus years in the racing industry, he has contributed in a positive manner on many occasions.

8. Conclusion –

The Racing Integrity Unit seeks a monetary penalty of a fine of $5,000.

The reason for this figure is that the GRNZ Board approved new starting points for the Racing Integrity Unit and the Judicial Control Authority to consider for drug offences. The new starting points apply for offences committed from 1 September 2014. Caffeine is classed as a Category 4 Prohibited Substance and the recommended starting point is a 6 months’ disqualification and/or a fine of $5,000.

Credit has to be given for the manner in which Mr Bennett has conducted himself during this enquiry and admitting the breach at the first opportunity.

We also seek the disqualification of DREAM ACADEMY under Rule 86.4 and the refund of the winning stake.

9. The R.I.U. are not seeking to recover any costs in this matter.

Penalty Submissions of the Respondent

[9] Mr Bennett filed “Charge and Penalty Submissions” which may be summarised as follows.

[10] He discontinued the use of “Nutrience Grain Feed” due to the unpleasant odour which suggested to him that it may have been “in a sub-standard condition”. He only ever purchased one bag in an attempt to vary the night feeds.

[11] The product was promoted as an all-natural premium dog food by its supplier and, therefore, he could see no obvious reason to make enquiries regarding the use of it. Although “green tea extract” was listed as an ingredient, he would not have connected that ingredient with caffeine. He would not have purchased the product had caffeine been shown as an ingredient.

[12] Mr Bennett claimed to have no knowledge of the positive for caffeine cases that were traced to green tea extract nor, during his seven years’ employment as a Harness Racing Steward in Australia and Greyhound Racing Steward in the Auckland/Waikato area, did he encounter or become aware of any positive swab for caffeine resulting from green tea extract in feed.

[13] Mr Bennett said that he currently trains seven greyhounds for racing of which three are owned by outside owners. There are a total of fourteen greyhounds on his property including three broodbitches and four others which are not of racing age. Greyhound training is his full-time occupation and his only source of income.

[14] Searches of many green tea extract products have shown not one to state that caffeine is contained in or is a derivative of it, Mr Bennett claimed. He produced to the hearing a bottle of “Pure Inventions” green tea antioxidant extract and pointed out that, on the packet, it was stated that the product was free of caffeine. He was “totally unaware” of the dangers of green tea extract and the previous cases involving that substance.

[15] Mr Bennett submitted that the Finn and Blackburn cases could be distinguished from the present case. In Finn, a different flavour of the Nutrience product was involved and in Blackburn the positive test had resulted from the greyhound eating cat biscuits.

[16] Mr Bennett denied that he had been negligent in not checking the ingredients of the product involved because, even if he had done so, he would not have made any connection between green tea extract and caffeine. Furthermore, the product was promoted as being “all natural”, which was misleading, he submitted.

[17] “Nutrience Grain Free” is not the product he feeds to his greyhounds. His usual feed is “Pedigree Working Dog”. Greyhound-specific kibble (feed) is extremely difficult to obtain and very expensive.

[18] Mr Bennett stated that he was not aware of any specific warning given by NZGRA highlighting the dangers of green tea extract. He suggested that it should be classified as a prohibited substance in its own right rather than simply having caffeine as a derivative.

[19] The Finn and Blackburn cases were not known to him and he had not seen the article in “On Track” referred to by the Informant. These all preceded his becoming a licensed trainer in April of this year.

[20] Mr Bennett said that he is extremely careful in relation to everything that his greyhounds consume including supplements and drugs administered to them by Veterinarians. He submitted that feed product manufacturers need to take more responsibility in ensuring that all ingredients and their derivatives are fully disclosed on the packaging so as to avoid any uncertainty and confusion caused by lack of full information.

[21] Mr Bennett apologised for the fact that DREAM ACADEMY was unknowingly presented to race with caffeine in her system. The disappointment in himself and embarrassment suffered since notification of the positive swab has been significant and, he suggested, detrimental to his future greyhound training aspirations.

Reasons for Penalty

[22] The parties are in agreement as to how the breach came about. Mr Bennett had fed his greyhound “Nutrience Grain Free” by way of attempting to introduce some variety into its night feed. The list of ingredients of that product, according to the packaging, did not show caffeine but listed green tea extract. Arguably, this should have alerted Mr Bennett to the possible presence of caffeine but he explained that he made no connection between green tea extract and caffeine and had no reason to investigate any possible connection. The Committee considers that Mr Bennett should have exercised a greater degree of vigilance. However, it needs to be acknowledged that Mr Bennett is a latecomer to greyhound training and, while we are describing what happened as negligence, it arose as much from his inexperience and naiveté.

[23] The appropriate starting points in a consideration of penalty for breaches of the Prohibited Substance Rule are provided in the Penalty Guide for Judicial Committees. Prohibited substances are divided into five categories - with Category 1 being the most serious and Category 5 being the least serious - and a different starting point is specified for each category.

[24] In this case, the prohibited substance, Caffeine, is in Category 4 – “a substance that has the ability to improve or impact the performance of a greyhound, and which has not been included in Categories 1, 2, 3 and 5”. Mrs Williams produced a letter from, Veterinarian, Dr M L Jansen BVSc which stated: “Caffeine is both a central nervous system and metabolic stimulant and is capable of reducing physical fatigue. It can therefore improve both sprint and endurance performance”.

[25] The starting point for a Category 4 breach is disqualification for 6 months and/or a fine of $5,000, as pointed out by Mrs Williams.

[26] Having established a starting point, the Committee needs to weigh up the various aggravating and mitigating factors and, by that process, arrive at an appropriate penalty.

[27] The Informant has not sought a period of disqualification in this case and the Committee accepts that the circumstances do not warrant a disqualification.

[28] It is an aggravating factor that, in the Committee’s view, Mr Bennett was negligent in feeding the greyhound the dog food product, “Nutrience Grain Free”, without having first made any enquiry as to the suitability of feeding it to a racing greyhound. We understand that the list of ingredients on the packet showed that it contained “green tea extract”. In addition, in the March 2015 issue of “On Track”, the official information bulletin of Greyhound Racing New Zealand, under an article headed “Drug Testing Greyhound Racing”, concern was expressed over the increased number of drug positives and it was stated that many of the positives are caused by negligence in various areas, including feeding. This should have sounded a warning note to all trainers, including Mr Bennett.

[29] Whilst we have found that Mr Bennett was negligent, we do not consider that this negligence element warrants any uplift in the starting point of $5,000.

[30] The mitigating factors for which Mr Bennett is entitled to credit and which the Committee has taken into account are, firstly, his admission of the breach and cooperation in the investigation and, secondly, his previous excellent record. We were told that, although he has been licensed in New Zealand for only a very short period, he has been involved in the greyhound and harness racing codes for over 30 years in Australia and New Zealand.

[31] The Committee considers that an appropriate discount for those mitigating factors is $1,500.00.

[32] The Committee is of the view that a fine of $3,500 is an appropriate penalty in all of the circumstances of this case.

[33] Such a penalty, we believe, satisfies the purposes and principles of sentencing and, in particular, is sufficient to hold the Respondent accountable, to denounce his conduct and to deter the Respondent or other persons from committing the same or a similar offence.

[34] In arriving at penalty, we have also had regard to the two earlier decisions (2015) of Finn and Blackburn, which were referred to by Mrs Williams in her penalty submissions. In particular, the Blackburn case was on similar facts involving, as it did, the negligent use of another “Nutrience” product in circumstances similar to the present case. The trainer in that case had a previous breach of the Prohibited Substance Rule in 2010, which was an aggravating factor not present in this case. The trainer was fined $4,000.

[35] In Finn, the greyhound won a heat and the final of the Duke of Edinburgh Silver Collar (Group 1), returning a positive to caffeine in both races, the source of which was established as caffeine from the green tea extract in “Nutrience Grain Free”. The Judicial Committee in that case took the starting point of $5,000 and gave the Respondent a discount of $1,500 for “personal factors”, resulting in a fine of $3,500.

[36] In the Committee’s view, the circumstances in both the Blackburn and Finn cases are, for the reasons given, more serious than the present case. In the former, the Respondent had a previous breach some 5 years earlier and, in the latter, the greyhound returned a positive swab in two races, one of which was a Group 1. We consider that the fine of $3,500 in the Finn case was lenient.

Penalty

[37] Mr Bennett is fined the sum of $3,500.

Disqualification of Greyhound

[38] It is ordered that DREAM ACADEMY be disqualified from Race 2, christchurchgreyhounds.co.nz Dash, at the meeting of Christchurch Greyhound Racing Club held at Addington Raceway on 26 April 2016. Consequent upon the disqualification, the amended result for the race is as follows:

1st  - 3 Archies Dijon

2nd - 8 High on Vee

3rd  - 2 Rio Action

4th  - 6 Ohoka Faith

5th  - 1 Gordons My Mate

[39] It is further ordered that the stake moneys of $720.00 be refunded to NZ Greyhound Racing Association (Incorporated) and redistributed in accordance with the above amended result.

Costs

[40] No order is made as to costs.

R G McKENZIE        D J ANDERSON

Chairman               Committee Member
 

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