Appeal Mr M A Robinson v RIU – Decision dated 14 June 2011
ID: JCA13532
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr Mark Anthony ROBINSON of Christchurch, Licensed public trainer
Appellant
AND Racing Integrity Unit
Respondent
Appeals Tribunal: Prof G Hall, Chairman, Mr R McKenzie, Member
Appearances: Mr M Robinson, in person, Mr R Carmichael, for respondent
Date of hearing: 30 May 2011
Date of oral decision: 30 May 2011
Date of written decision: 14 June 2011
DECISION OF APPEALS TRIBUNAL
[1] Mr Robinson appealed against the non-raceday committee’s finding of guilt and its imposition of penalty with respect to two breaches of the Rules of Greyhound Racing. The committee imposed six months’ disqualification on the prohibited substance charge and three months concurrent on the other, which was regarded as the lesser charge. No fine was imposed, but the appellant was ordered to pay costs of $700.
DECISION OF APPEALS TRIBUNAL
[1] Mr Robinson appealed against the non-raceday committee’s finding of guilt and its imposition of penalty with respect to two breaches of the Rules of Greyhound Racing. The committee imposed six months’ disqualification on the prohibited substance charge and three months concurrent on the other, which was regarded as the lesser charge. No fine was imposed, but the appellant was ordered to pay costs of $700.
[2] The first charge, which was found proved relates to the prohibited substances rule. This charge read as follows:
“On Friday the 28th day of January, 2011, being the owner and trainer of a greyhound, namely “Brasch” nominated to compete in a race, namely race 2, The Challenge Opawa All Up Stakes held by the Christchurch Greyhound Racing Club at Addington Raceway, did fail to produce the said greyhound “Brasch” for the said race free of any prohibited substance, namely Heptaminol, being in breach of Rule 87.1 and 3 of the Greyhound New Zealand Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.1 a, b, c and d and the said greyhound “Brasch” is liable to the penalty which may be imposed in accordance with Rule 87.4.”
[3] The second charge related to allegedly making a false statement, and read as follows:
“Mark Anthony Robinson on Wednesday the 9th February, 2011, did make a statement which was to his knowledge false, orally, to a Racecourse Inspector, Mr Barry Alexander Kitto and a Stipendiary Steward Mr Paul Leslie Harper in the execution of their duty in breach of Rule 88.1.w of the Greyhound New Zealand Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.1. a, b, c and d of the Greyhound New Zealand Rules of Racing.”
[4] Having reviewed the evidence relating to the prohibited substance charge, the committee made the following findings:
“Mr Robinson injected his greyhound with Kynoselen containing the prohibited substance Heptaminol. Although Mr Robinson contended that he did not know that Kynoselen contained Heptaminol, we find that he was negligent in not reading the labels, and that those labels gave adequate warnings to any prudent person to take care when using the substance. There has been, in the past, some confusion over the different varieties of Kynoselen, but the labels now make it quite clear what the contents of each variety are.”
[5] In relation to the charge of making a false statement the committee found:
“this [that the charge is proved] is clearly the case, and Mr Robinson’s excuse that he was trying to protect others is no defence, and as a result the investigation of this breach took more time and effort than it should have”.
[6] The appellant had admitted the two breaches before the non-raceday committee and in response to questioning from this Tribunal, he accepted there were not exceptional circumstances that would permit us to consider an appeal against the non-raceday committee’s finding of guilt. The appeal was thus dealt with solely as an appeal against penalty and costs.
The appellant’s submissions
[7] Mr Robinson stated that he was unaware that there were two different versions of Kynoselen, one containing Heptaminol and the other not. Had he been aware Kynoselen contained a prohibited substance, he said he would not have given it to the dog. He said he read the label on the Kynoselen he had purchased and was aware it contained Heptaminol but was unaware that Heptaminol was a prohibited substance. He had approached NZGRA in an endeavour to obtain a list of prohibited substances but they had indicated that they could or would not produce a list. (The Rules of course ban any substance that has any of the effects on dogs that are specified in R 3.) He acknowledged that he was aware that Kynoselen was a substance that would affect the performance of the dog.
[8] Mr Robinson further said he was giving Kynoselen to the dog himself to deal with it tying up and was trying to avoid the associated veterinarian fees. He had discussed the issue of the dog tying up with a veterinarian in January 2009 and the veterinarian had suggested the use of the drug. The veterinarian had not pointed out to the appellant that there was more than one version of the drug being sold and that one had a stand-down period. He was unaware of press releases to this effect by NZGRA in 1999 as he was not a trainer at that time. When questioned by this Tribunal, he acknowledged he could have obtained more recent advice from a veterinarian but had not thought it was necessary to do so.
[9] Mr Robinson stated that he disagreed with one statement in the summary of facts that was recounted by the non-raceday committee in its decision. This was the reference to his having obtained the Kynoselen from “a local veterinary firm”. He said he had purchased the product from Garrards at Addington, which the parties accepted was more accurately described as a retail tack store. We take this opportunity to correct this error, but we emphasise that in our view this error had no effect on the penalty that was imposed by that committee.
[10] Mr Robinson further stated that he had obtained Kynoselen over the counter at Garrards for $48. Specifically, he said a shop assistant had gone out the back and had returned with the Kynoselen. The assistant told him that she used Kynoselen on her horse. She had not mentioned it contained a prohibited substance or that there was a withholding time.
[11] With respect to the period of disqualification, Mr Robinson stated he owned eight dogs, six of which were retired. He thus had only two dogs in work. He asked us to consider that a dog’s racing career was usually much briefer than that of a horse. He said it was often only a couple of years and thus he believed a six month disqualification was more severe when imposed upon a greyhound trainer with a small number of dogs than that imposed upon a horse trainer in a similar position. He also emphasised that the stake money that was available was significantly less than that available in the two horse codes. He said he wanted the opportunity to race his two dogs in order to be able to earn money to meet his financial commitments to NZGRA and more generally.
[12] Mr Robinson described in some detail the impact upon his personal circumstances of the recent earthquake. We do not intend to recount this, but we have sympathy for his plight and this is a matter that we take into account in determining whether the penalty is excessive. One consideration, in particular, is the restricted ability the appellant had, in common with other Christchurch owners and trainers, to race his two dogs over the weeks after the quake due to there being no racing at Addington. The appellant explained why he was not in position to travel to meetings outside the Christchurch area. We accept that explanation and note this inability to obtain stake money may impact on his ability to meet any financial penalty that we may impose.
[13] With respect to the period of disqualification, the appellant said that he owned the sire of the dogs he had in work and, if they were not racing and winning, this would devalue the sire and reduce the opportunities he would have to attract others to breed from that dog. We accept this is a further consequence of any disqualification period that is imposed upon the appellant.
[14] Mr Robinson asked us to consider the substitution of the period of disqualification with a fine, which he believed he would be able to meet by way of payment by instalments. When this Tribunal indicated that any fine would have to be at a significant level, the appellant responded that he was referring to a fine of around a thousand dollars. He emphasised he had already had to pay back the stakes and bonus the dog had earned as a consequence of winning the race from which it had subsequently been disqualified.
The respondent’s submissions
[15] The respondent supplemented his written submissions orally. He emphasised that the Racing Integrity Unit viewed the breach of the prohibited substance rule as being the more significant of the two breaches of the rules. He did not question the imposition of a concurrent period of disqualification on the false statement charge.
[16] Mr Carmichael stated that the appellant had chosen to source the Kynoselen through Garrards and not through a veterinarian, purely on the basis of cost. He said that had the appellant obtained it from a veterinarian he would have received advice on the use of the drug, and, more significantly, he would have obtained the Kynoselen without Heptaminol as Heptaminol was no longer registered as an animal remedy in New Zealand, and therefore could not be legitimately obtained.
[17] With reference to the false statement breach, the respondent said that when interviewed, Mr Robinson had lied to the investigator concerning the source of the Kynoselen.
[18] The respondent did not seek any increase in penalty but submitted that the penalty imposed by the non-raceday committee was appropriate in that it correctly assessed the appellant’s personal circumstances, together with the circumstances of the offending, itself.
[19] In “normal circumstances” the respondent submitted, and consistent with penalties imposed in similar cases in the past for a first breach of the prohibited substance rule, the appellant’s breach would have resulted in four months’ disqualification and a fine in the order of $2000. The respondent had been unable to locate precedents with respect to the false statement breach, but submitted the 6-month disqualification was an appropriate penalty when the totality of the offending was considered. The respondent emphasised that the appellant had repeatedly stated to the non-raceday committee that he was not in a position to pay a fine.
[20] The respondent referred to Ross (2000) and Thompson (2000) as being the most recent greyhound cases involving Heptaminol. In those cases nine months’ suspension (2nd offence) and three months’ suspension were imposed, respectively. Recent cases involving positive swabs had resulted in fines of $1500 to $3000.
Discussion
[21] We believe when regard is had to the gravity of the breach and the appellant’s financial circumstances that the appropriate penalty is one of disqualification. Neither party requested that we consider a suspension, and we noted a clear reluctance on the part of the appellant to place his dogs with another trainer for the purpose of their racing.
[22] We do not believe the appellant’s culpability is at the higher end. That said, the ingredients of Kynoselen were clearly stated on the packaging of the product and on the bottle itself. The defendant has acknowledged that he read the list of ingredients but he did not appreciate there was a form of Kynoselen that contained a prohibited substance, and further was unaware that Heptaminol was a prohibited substance. The breach is one of strict liability and there is no suggestion that the appellant was totally without fault. Kynoselen is a “veterinary only” product and he failed to seek veterinary advice concerning the product he had purchased, preferring to rely on an historical conversation with a veterinarian and advice he received across the counter in a tack shop. It appears this particular Kynoselen had been sourced from Australia, as the respondent stated in his submissions that Kynoselen containing Heptaminol is not usually stocked in New Zealand.
[23] We do not regard the fact that the appellant was endeavouring to protect the source of the Kynoselen in question, as he now states, as being a mitigating factor with respect to his making a false statement to the racecourse inspector, Mr Barry Kitto. As a licence holder he has a clear duty to abide by the rules and an obligation to respond to questions put to him concerning an ongoing inquiry in an open and honest manner.
[24] In a similar fashion to the non-raceday committee, we acknowledge the appellant’s excellent record and his admission of the breaches to be mitigating factors. We understand these are his first breaches of any of the rules in his five years in the industry. He has raced 12 dogs in this time.
[25] We accept the appellant has been under stress over the past three months. We believe this is primarily due to his personal circumstances consequent upon the February earthquake rather than the stress of the delay in the hearing of this matter, as he alleges. But as we previously indicated, we do regard his personal circumstances as mitigating penalty.
Penalty:
[26] Weighing these matters, we believe the appropriate period of disqualification is four months. The appellant needs to be given time to make the necessary arrangements and this period of disqualification is ordered to commence on Monday 20 June. The stay of penalty previously granted by the Chairman of this Tribunal will continue until 19 June.
[27] The non-raceday decision does not indicate the reasoning by which that committee calculated the sum of $700 in costs as being appropriate. Both parties assure us that it was only a half-day hearing. In these circumstances we reduce the award to one of $350.
[28] Neither party asked for costs with respect to this appeal. We order these that costs lie where they fall.
Geoff Hall, Chairman
Russell McKenzie, Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 25/05/2011
Publish Date: 25/05/2011
JCA Decision Fields (raw)
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decisiondate: 25/05/2011
hearing_title: Appeal Mr M A Robinson v RIU - Decision dated 14 June 2011
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr Mark Anthony ROBINSON of Christchurch, Licensed public trainer
Appellant
AND Racing Integrity Unit
Respondent
Appeals Tribunal: Prof G Hall, Chairman, Mr R McKenzie, Member
Appearances: Mr M Robinson, in person, Mr R Carmichael, for respondent
Date of hearing: 30 May 2011
Date of oral decision: 30 May 2011
Date of written decision: 14 June 2011
DECISION OF APPEALS TRIBUNAL
[1] Mr Robinson appealed against the non-raceday committee’s finding of guilt and its imposition of penalty with respect to two breaches of the Rules of Greyhound Racing. The committee imposed six months’ disqualification on the prohibited substance charge and three months concurrent on the other, which was regarded as the lesser charge. No fine was imposed, but the appellant was ordered to pay costs of $700.
DECISION OF APPEALS TRIBUNAL
[1] Mr Robinson appealed against the non-raceday committee’s finding of guilt and its imposition of penalty with respect to two breaches of the Rules of Greyhound Racing. The committee imposed six months’ disqualification on the prohibited substance charge and three months concurrent on the other, which was regarded as the lesser charge. No fine was imposed, but the appellant was ordered to pay costs of $700.
[2] The first charge, which was found proved relates to the prohibited substances rule. This charge read as follows:
“On Friday the 28th day of January, 2011, being the owner and trainer of a greyhound, namely “Brasch” nominated to compete in a race, namely race 2, The Challenge Opawa All Up Stakes held by the Christchurch Greyhound Racing Club at Addington Raceway, did fail to produce the said greyhound “Brasch” for the said race free of any prohibited substance, namely Heptaminol, being in breach of Rule 87.1 and 3 of the Greyhound New Zealand Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.1 a, b, c and d and the said greyhound “Brasch” is liable to the penalty which may be imposed in accordance with Rule 87.4.”
[3] The second charge related to allegedly making a false statement, and read as follows:
“Mark Anthony Robinson on Wednesday the 9th February, 2011, did make a statement which was to his knowledge false, orally, to a Racecourse Inspector, Mr Barry Alexander Kitto and a Stipendiary Steward Mr Paul Leslie Harper in the execution of their duty in breach of Rule 88.1.w of the Greyhound New Zealand Rules of Racing and you are therefore liable to the penalty or penalties which may be imposed in accordance with Rule 89.1. a, b, c and d of the Greyhound New Zealand Rules of Racing.”
[4] Having reviewed the evidence relating to the prohibited substance charge, the committee made the following findings:
“Mr Robinson injected his greyhound with Kynoselen containing the prohibited substance Heptaminol. Although Mr Robinson contended that he did not know that Kynoselen contained Heptaminol, we find that he was negligent in not reading the labels, and that those labels gave adequate warnings to any prudent person to take care when using the substance. There has been, in the past, some confusion over the different varieties of Kynoselen, but the labels now make it quite clear what the contents of each variety are.”
[5] In relation to the charge of making a false statement the committee found:
“this [that the charge is proved] is clearly the case, and Mr Robinson’s excuse that he was trying to protect others is no defence, and as a result the investigation of this breach took more time and effort than it should have”.
[6] The appellant had admitted the two breaches before the non-raceday committee and in response to questioning from this Tribunal, he accepted there were not exceptional circumstances that would permit us to consider an appeal against the non-raceday committee’s finding of guilt. The appeal was thus dealt with solely as an appeal against penalty and costs.
The appellant’s submissions
[7] Mr Robinson stated that he was unaware that there were two different versions of Kynoselen, one containing Heptaminol and the other not. Had he been aware Kynoselen contained a prohibited substance, he said he would not have given it to the dog. He said he read the label on the Kynoselen he had purchased and was aware it contained Heptaminol but was unaware that Heptaminol was a prohibited substance. He had approached NZGRA in an endeavour to obtain a list of prohibited substances but they had indicated that they could or would not produce a list. (The Rules of course ban any substance that has any of the effects on dogs that are specified in R 3.) He acknowledged that he was aware that Kynoselen was a substance that would affect the performance of the dog.
[8] Mr Robinson further said he was giving Kynoselen to the dog himself to deal with it tying up and was trying to avoid the associated veterinarian fees. He had discussed the issue of the dog tying up with a veterinarian in January 2009 and the veterinarian had suggested the use of the drug. The veterinarian had not pointed out to the appellant that there was more than one version of the drug being sold and that one had a stand-down period. He was unaware of press releases to this effect by NZGRA in 1999 as he was not a trainer at that time. When questioned by this Tribunal, he acknowledged he could have obtained more recent advice from a veterinarian but had not thought it was necessary to do so.
[9] Mr Robinson stated that he disagreed with one statement in the summary of facts that was recounted by the non-raceday committee in its decision. This was the reference to his having obtained the Kynoselen from “a local veterinary firm”. He said he had purchased the product from Garrards at Addington, which the parties accepted was more accurately described as a retail tack store. We take this opportunity to correct this error, but we emphasise that in our view this error had no effect on the penalty that was imposed by that committee.
[10] Mr Robinson further stated that he had obtained Kynoselen over the counter at Garrards for $48. Specifically, he said a shop assistant had gone out the back and had returned with the Kynoselen. The assistant told him that she used Kynoselen on her horse. She had not mentioned it contained a prohibited substance or that there was a withholding time.
[11] With respect to the period of disqualification, Mr Robinson stated he owned eight dogs, six of which were retired. He thus had only two dogs in work. He asked us to consider that a dog’s racing career was usually much briefer than that of a horse. He said it was often only a couple of years and thus he believed a six month disqualification was more severe when imposed upon a greyhound trainer with a small number of dogs than that imposed upon a horse trainer in a similar position. He also emphasised that the stake money that was available was significantly less than that available in the two horse codes. He said he wanted the opportunity to race his two dogs in order to be able to earn money to meet his financial commitments to NZGRA and more generally.
[12] Mr Robinson described in some detail the impact upon his personal circumstances of the recent earthquake. We do not intend to recount this, but we have sympathy for his plight and this is a matter that we take into account in determining whether the penalty is excessive. One consideration, in particular, is the restricted ability the appellant had, in common with other Christchurch owners and trainers, to race his two dogs over the weeks after the quake due to there being no racing at Addington. The appellant explained why he was not in position to travel to meetings outside the Christchurch area. We accept that explanation and note this inability to obtain stake money may impact on his ability to meet any financial penalty that we may impose.
[13] With respect to the period of disqualification, the appellant said that he owned the sire of the dogs he had in work and, if they were not racing and winning, this would devalue the sire and reduce the opportunities he would have to attract others to breed from that dog. We accept this is a further consequence of any disqualification period that is imposed upon the appellant.
[14] Mr Robinson asked us to consider the substitution of the period of disqualification with a fine, which he believed he would be able to meet by way of payment by instalments. When this Tribunal indicated that any fine would have to be at a significant level, the appellant responded that he was referring to a fine of around a thousand dollars. He emphasised he had already had to pay back the stakes and bonus the dog had earned as a consequence of winning the race from which it had subsequently been disqualified.
The respondent’s submissions
[15] The respondent supplemented his written submissions orally. He emphasised that the Racing Integrity Unit viewed the breach of the prohibited substance rule as being the more significant of the two breaches of the rules. He did not question the imposition of a concurrent period of disqualification on the false statement charge.
[16] Mr Carmichael stated that the appellant had chosen to source the Kynoselen through Garrards and not through a veterinarian, purely on the basis of cost. He said that had the appellant obtained it from a veterinarian he would have received advice on the use of the drug, and, more significantly, he would have obtained the Kynoselen without Heptaminol as Heptaminol was no longer registered as an animal remedy in New Zealand, and therefore could not be legitimately obtained.
[17] With reference to the false statement breach, the respondent said that when interviewed, Mr Robinson had lied to the investigator concerning the source of the Kynoselen.
[18] The respondent did not seek any increase in penalty but submitted that the penalty imposed by the non-raceday committee was appropriate in that it correctly assessed the appellant’s personal circumstances, together with the circumstances of the offending, itself.
[19] In “normal circumstances” the respondent submitted, and consistent with penalties imposed in similar cases in the past for a first breach of the prohibited substance rule, the appellant’s breach would have resulted in four months’ disqualification and a fine in the order of $2000. The respondent had been unable to locate precedents with respect to the false statement breach, but submitted the 6-month disqualification was an appropriate penalty when the totality of the offending was considered. The respondent emphasised that the appellant had repeatedly stated to the non-raceday committee that he was not in a position to pay a fine.
[20] The respondent referred to Ross (2000) and Thompson (2000) as being the most recent greyhound cases involving Heptaminol. In those cases nine months’ suspension (2nd offence) and three months’ suspension were imposed, respectively. Recent cases involving positive swabs had resulted in fines of $1500 to $3000.
Discussion
[21] We believe when regard is had to the gravity of the breach and the appellant’s financial circumstances that the appropriate penalty is one of disqualification. Neither party requested that we consider a suspension, and we noted a clear reluctance on the part of the appellant to place his dogs with another trainer for the purpose of their racing.
[22] We do not believe the appellant’s culpability is at the higher end. That said, the ingredients of Kynoselen were clearly stated on the packaging of the product and on the bottle itself. The defendant has acknowledged that he read the list of ingredients but he did not appreciate there was a form of Kynoselen that contained a prohibited substance, and further was unaware that Heptaminol was a prohibited substance. The breach is one of strict liability and there is no suggestion that the appellant was totally without fault. Kynoselen is a “veterinary only” product and he failed to seek veterinary advice concerning the product he had purchased, preferring to rely on an historical conversation with a veterinarian and advice he received across the counter in a tack shop. It appears this particular Kynoselen had been sourced from Australia, as the respondent stated in his submissions that Kynoselen containing Heptaminol is not usually stocked in New Zealand.
[23] We do not regard the fact that the appellant was endeavouring to protect the source of the Kynoselen in question, as he now states, as being a mitigating factor with respect to his making a false statement to the racecourse inspector, Mr Barry Kitto. As a licence holder he has a clear duty to abide by the rules and an obligation to respond to questions put to him concerning an ongoing inquiry in an open and honest manner.
[24] In a similar fashion to the non-raceday committee, we acknowledge the appellant’s excellent record and his admission of the breaches to be mitigating factors. We understand these are his first breaches of any of the rules in his five years in the industry. He has raced 12 dogs in this time.
[25] We accept the appellant has been under stress over the past three months. We believe this is primarily due to his personal circumstances consequent upon the February earthquake rather than the stress of the delay in the hearing of this matter, as he alleges. But as we previously indicated, we do regard his personal circumstances as mitigating penalty.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[26] Weighing these matters, we believe the appropriate period of disqualification is four months. The appellant needs to be given time to make the necessary arrangements and this period of disqualification is ordered to commence on Monday 20 June. The stay of penalty previously granted by the Chairman of this Tribunal will continue until 19 June.
[27] The non-raceday decision does not indicate the reasoning by which that committee calculated the sum of $700 in costs as being appropriate. Both parties assure us that it was only a half-day hearing. In these circumstances we reduce the award to one of $350.
[28] Neither party asked for costs with respect to this appeal. We order these that costs lie where they fall.
Geoff Hall, Chairman
Russell McKenzie, Member
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Respondent: Mr R Carmichael - Racecourse Inspector
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