Non Raceday Inquiry NZGRA v M A Robinson 26 April 2011 – Decision dated 5 May 2011
ID: JCA11189
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of the New Zealand
Rules of Greyhound Racing
BETWEEN Racing Integrity Unit
Informant
AND Mark Anthony ROBINSON
Defendant
DATE OF HEARING: 26 April 2011
VENUE: Addington Raceway, Christchurch.
PRESENT: Mr T. R. Carmichael (Racing Investigator) representing the Racing Integrity Unit, Mr B. A. Kitto (Racing Investigator), Mr M. A. Robinson (Licensed Trainer), Mrs K. R. Williams (Registrar)
JUDICIAL COMMITTEE: J. M. Phelan (Chairman), K. G. Hales
DATE OF DECISION: 5 May 2011
JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS
[1] Racing Investigator Mr B. A. Kitto has filed Information 66764 charging Licensed Trainer Mr Mark Anthony Robinson with two breaches of the Rules of Greyhound Racing. Racing Investigator Mr T. R. Carmichael represented the Racing Integrity Unit at this hearing.
[2] The first charge relates to the “Prohibited Substances” Rule. Prior to this charge being read, it was amended to replace the word “drug” with “prohibited substance” and also to replace “Rule 87.1” with “Rules 87.1 and 3”. This charge reads 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.”
[2] Rules 87.1 and 3 read as follows.
“87 PROHIBITED SUBSTANCES
87.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in an Race, shall produce the Greyhound for the Race free of any Prohibited Substance.
87.2 …..
87.3 Without limiting any of the provisions of these Rules, the Owner and Trainer or
person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence, unless the Board determines to absolve the Owner and/or Trainer or person in charge of any Greyhound from the Offence.”
[3] The second charge relates to allegedly making a false statement, and reads 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] Rule 88.1.w reads as follows.
“88 OFFENCES
88.1 Any person (including an Official) commits an offence if he/she:
w. makes any statement which is to his/her knowledge false either orally, by print, in writing, by electronic means or by any combination thereof to a member of the Board, Steward, Racecourse Inspector, Appeals Tribunal, the Judicial Control Authority, Veterinarian or an Official in the execution of his/her duty.”
[5] The charges and the Rules were read to Mr Robinson and he agreed that he understood them. Mr Robinson also said that both charges were admitted. In accordance with Rule 92.3.e we found both charges to be proved.
[6] Mr Carmichael produced written permission to lodge these charges from the General Manager of Greyhound Racing New Zealand (GRNZ), in accordance with Rule 92.2(a).
[7] Mr Carmichael provided a Summary of Facts which he read to this Committee. The facts are as follows.
[8] On 28 January 2011 Mr Robinson was the trainer and the person for the time being in charge of the greyhound “Brasch” which was correctly nominated for and started in Race 2, the Challenge Opawa All Up Stakes for C0 greyhounds, held by the Christchurch Greyhound Racing Club at Addington Raceway. “Brasch” won this race and was selected as a post race swab.
[9] Mr Robinson was present when his greyhound was swabbed, and he signed the relevant swab card, and also indicated that he had no complaints with regard to the swabbing procedures. This sample was forwarded to the Racing Laboratory where it was received on 1 February 2011.
[10] On 8 February 2011 the Racing Analyst reported in writing that the sample taken from “Brasch” had tested positive to Heptaminol. Heptaminol is a cardiac stimulant and is a drug under the New Zealand Greyhound Racing Rules, and had been notified in Greyhound Racing’s official publication in April 1999. Heptaminol has a 96 hour recommended withholding time. The Certificate of Analysis, and the notification relating to Heptaminol were produced in evidence.
[11] On 9 February 2011 Mr Kitto and Stipendiary Steward Mr P. L. Harper interviewed Mr Robinson about this matter. Mr Robinson said that he had used Kynoselen previously, but through a vet who had told him that there was no withholding time for this product. Mr Robinson said he decided to get some Kynoselen himself so that he could save money by not going to a vet.
[12] Mr Robinson said that he had obtained the Kynoselen from a veterinary firm in Australia, and that it was bought for him by a friend. He said that he had injected this substance intramuscularly in the dog’s neck, and between 48 and 72 hours before the race meeting. He also said that he did not know what Heptaminol was, and that he was not aware that Kynoselen comes in three different forms.
[13] Mr Robinson was again interviewed by Mr Kitto and Mr Harper on 2 March 2011. He then admitted that his story about a friend bringing him the Kynoselen from Australia was false, and that he had ordered it through a local Veterinary firm himself. Mr Robinson explained that he had been untruthful in order to protect staff at the Veterinary firm.
[14] Kynoselen containing Heptaminol is not stocked in New Zealand.
[15] The packet which contained the Kynoselen used by Mr Robinson was produced for inspection at the hearing, and photographs were produced in evidence. The labels contained two statements which are relevant to this matter. The first statement of note is –
“If used in performance animals,
the regulations of the relevant
authorities regarding medication
should be observed.”
The second statement of note was under the heading “ACTIVE CONSTITUENTS” which said that this particular variety of Kynoselen contains 0.50g of Heptaminol Hydrochloride per 100mL bottle, which this was.
[16] In relation to the facts of these matters Mr Robinson said that he had approached a vet about problems he was having with a greyhound finishing a race off. He was advised to try an injection of Kynoselen/Corforta, and that this could be used close to race day as it had no prohibited substances in it. The vet also explained to him that there had been trouble in the past with Kynoselen. Mr Robinson said that at no time was he told that there was more than one version of Kynoselen, and that he did not know it contained the prohibited substance Heptaminol when he injected his greyhound. He also said that it cost $48-00 to have a vet inject Kynoselen, and he wanted to save money by buying a full bottle for $48-00.
[17] In relation to the charge of making a false statement Mr Robinson said that he made it in order to protect the people he had bought it from.
Penalty:
[18] Having reviewed the evidence relating to the Prohibited Substance charge we make 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.
[19] In relation to the charge of making a false statement, we find that this 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,.
[20] In relation to penalty Mr Carmichael submitted that, in relation to the Prohibited Substances charge, a fine of $2000-00 or a disqualification of 4 months should be imposed. In relation to the false statement charge Mr Carmichael submitted that a starting point for a penalty in this case would be a 6 month disqualification, and that this was the penalty being sought.
[21] In relation to penalty Mr Robinson made submissions that he is an owner/trainer and at present has two dogs racing. He makes very little money from racing, and described his financial position as being “dire”. Mr Robinson said he would have difficulty in paying back the $1628-00 stake money from this race and any costs that might be ordered.
[22] Rule 89.1 sets out the penalties provided for these breaches, and this Rule provides as follows.
“89.1 Any Person found guilty of an Offence under these Rules shall be liable to, in the sole and absolute discretion of the Board or the Stewards:
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.”
[23] In determining an appropriate penalty in these cases we have taken into account the following matters.
[24] The aggravating factors are that Mr Robinson injected the Kynoselen himself without taking necessary precautions to ensure he was acting within the Rules. He also made false statements which prolonged the investigation.
[25] To Mr Robinson’s credit he admitted these breaches, and he has no previous convictions.
[26] Although Mr Carmichael has submitted that a fine or a disqualification would be an appropriate penalty in this case, we do not agree that a fine is appropriate. It is also relevant that Mr Robinson’s financial position is described by him as being “dire”, and we assess that he is not in a position to pay a substantial fine. Other penalties cited in relation to the use of Kynoselen containing Heptaminol have been in relation to the use when the labelling was misleading. This is not the case here. In this case Mr Robinson has been negligent in failing to the heed the warnings on the packet.
[27] In relation to the Prohibited Substance charge we have decided that Mr Robinson will be disqualified for a period of six (6) months. This period of disqualification will commence on 14 May 2011 and will conclude on 13 November 2011. The delay in the commencement of the disqualification is to give Mr Robinson time to put his greyhound racing affairs in order. No fine will be imposed in this case.
[28] In relation to the false statement charge we have decided that Mr Robinson will be disqualified for a period of three (3) months, and this term of disqualification will be served concurrently with the disqualification set out in para. [27] above. This disqualification will also commence on 14 May 2011. Again no fine will be imposed in this case.
[29] On the day of the hearing Mr Carmichael sought the disqualification of “Brasch”. This order was made orally that day and it is now confirmed in this decision. Rule 87.4 provides as follows.
“87.4 Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”
We confirm the order that “Brasch” (4) be disqualified from Race 2, the Challenge Opawa All Up Stakes, at the Christchurch Greyhound Racing Club’s meeting held at the Addington Raceway on 28 January 2011, and that the stake money earned by that Greyhound be refunded to GRNZ for payment as per the amended placings.
[30] No costs were sought by the Racing Integrity Unit. There will however be an order that Mr Robinson pay costs of $700-00 to the Judicial Control Authority for Racing.
__________________ _________________
J. M. Phelan K. G. Hales
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 14/04/2011
Publish Date: 14/04/2011
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
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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informantnumber: 66764
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penaltyrequired:
decisiondate: 14/04/2011
hearing_title: Non Raceday Inquiry NZGRA v M A Robinson 26 April 2011 - Decision dated 5 May 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of the New Zealand
Rules of Greyhound Racing
BETWEEN Racing Integrity Unit
Informant
AND Mark Anthony ROBINSON
Defendant
DATE OF HEARING: 26 April 2011
VENUE: Addington Raceway, Christchurch.
PRESENT: Mr T. R. Carmichael (Racing Investigator) representing the Racing Integrity Unit, Mr B. A. Kitto (Racing Investigator), Mr M. A. Robinson (Licensed Trainer), Mrs K. R. Williams (Registrar)
JUDICIAL COMMITTEE: J. M. Phelan (Chairman), K. G. Hales
DATE OF DECISION: 5 May 2011
JUDICIAL COMMITTEE’S DECISION ON PENALTY AND COSTS
[1] Racing Investigator Mr B. A. Kitto has filed Information 66764 charging Licensed Trainer Mr Mark Anthony Robinson with two breaches of the Rules of Greyhound Racing. Racing Investigator Mr T. R. Carmichael represented the Racing Integrity Unit at this hearing.
[2] The first charge relates to the “Prohibited Substances” Rule. Prior to this charge being read, it was amended to replace the word “drug” with “prohibited substance” and also to replace “Rule 87.1” with “Rules 87.1 and 3”. This charge reads 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.”
[2] Rules 87.1 and 3 read as follows.
“87 PROHIBITED SUBSTANCES
87.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in an Race, shall produce the Greyhound for the Race free of any Prohibited Substance.
87.2 …..
87.3 Without limiting any of the provisions of these Rules, the Owner and Trainer or
person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence, unless the Board determines to absolve the Owner and/or Trainer or person in charge of any Greyhound from the Offence.”
[3] The second charge relates to allegedly making a false statement, and reads 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] Rule 88.1.w reads as follows.
“88 OFFENCES
88.1 Any person (including an Official) commits an offence if he/she:
w. makes any statement which is to his/her knowledge false either orally, by print, in writing, by electronic means or by any combination thereof to a member of the Board, Steward, Racecourse Inspector, Appeals Tribunal, the Judicial Control Authority, Veterinarian or an Official in the execution of his/her duty.”
[5] The charges and the Rules were read to Mr Robinson and he agreed that he understood them. Mr Robinson also said that both charges were admitted. In accordance with Rule 92.3.e we found both charges to be proved.
[6] Mr Carmichael produced written permission to lodge these charges from the General Manager of Greyhound Racing New Zealand (GRNZ), in accordance with Rule 92.2(a).
[7] Mr Carmichael provided a Summary of Facts which he read to this Committee. The facts are as follows.
[8] On 28 January 2011 Mr Robinson was the trainer and the person for the time being in charge of the greyhound “Brasch” which was correctly nominated for and started in Race 2, the Challenge Opawa All Up Stakes for C0 greyhounds, held by the Christchurch Greyhound Racing Club at Addington Raceway. “Brasch” won this race and was selected as a post race swab.
[9] Mr Robinson was present when his greyhound was swabbed, and he signed the relevant swab card, and also indicated that he had no complaints with regard to the swabbing procedures. This sample was forwarded to the Racing Laboratory where it was received on 1 February 2011.
[10] On 8 February 2011 the Racing Analyst reported in writing that the sample taken from “Brasch” had tested positive to Heptaminol. Heptaminol is a cardiac stimulant and is a drug under the New Zealand Greyhound Racing Rules, and had been notified in Greyhound Racing’s official publication in April 1999. Heptaminol has a 96 hour recommended withholding time. The Certificate of Analysis, and the notification relating to Heptaminol were produced in evidence.
[11] On 9 February 2011 Mr Kitto and Stipendiary Steward Mr P. L. Harper interviewed Mr Robinson about this matter. Mr Robinson said that he had used Kynoselen previously, but through a vet who had told him that there was no withholding time for this product. Mr Robinson said he decided to get some Kynoselen himself so that he could save money by not going to a vet.
[12] Mr Robinson said that he had obtained the Kynoselen from a veterinary firm in Australia, and that it was bought for him by a friend. He said that he had injected this substance intramuscularly in the dog’s neck, and between 48 and 72 hours before the race meeting. He also said that he did not know what Heptaminol was, and that he was not aware that Kynoselen comes in three different forms.
[13] Mr Robinson was again interviewed by Mr Kitto and Mr Harper on 2 March 2011. He then admitted that his story about a friend bringing him the Kynoselen from Australia was false, and that he had ordered it through a local Veterinary firm himself. Mr Robinson explained that he had been untruthful in order to protect staff at the Veterinary firm.
[14] Kynoselen containing Heptaminol is not stocked in New Zealand.
[15] The packet which contained the Kynoselen used by Mr Robinson was produced for inspection at the hearing, and photographs were produced in evidence. The labels contained two statements which are relevant to this matter. The first statement of note is –
“If used in performance animals,
the regulations of the relevant
authorities regarding medication
should be observed.”
The second statement of note was under the heading “ACTIVE CONSTITUENTS” which said that this particular variety of Kynoselen contains 0.50g of Heptaminol Hydrochloride per 100mL bottle, which this was.
[16] In relation to the facts of these matters Mr Robinson said that he had approached a vet about problems he was having with a greyhound finishing a race off. He was advised to try an injection of Kynoselen/Corforta, and that this could be used close to race day as it had no prohibited substances in it. The vet also explained to him that there had been trouble in the past with Kynoselen. Mr Robinson said that at no time was he told that there was more than one version of Kynoselen, and that he did not know it contained the prohibited substance Heptaminol when he injected his greyhound. He also said that it cost $48-00 to have a vet inject Kynoselen, and he wanted to save money by buying a full bottle for $48-00.
[17] In relation to the charge of making a false statement Mr Robinson said that he made it in order to protect the people he had bought it from.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[18] Having reviewed the evidence relating to the Prohibited Substance charge we make 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.
[19] In relation to the charge of making a false statement, we find that this 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,.
[20] In relation to penalty Mr Carmichael submitted that, in relation to the Prohibited Substances charge, a fine of $2000-00 or a disqualification of 4 months should be imposed. In relation to the false statement charge Mr Carmichael submitted that a starting point for a penalty in this case would be a 6 month disqualification, and that this was the penalty being sought.
[21] In relation to penalty Mr Robinson made submissions that he is an owner/trainer and at present has two dogs racing. He makes very little money from racing, and described his financial position as being “dire”. Mr Robinson said he would have difficulty in paying back the $1628-00 stake money from this race and any costs that might be ordered.
[22] Rule 89.1 sets out the penalties provided for these breaches, and this Rule provides as follows.
“89.1 Any Person found guilty of an Offence under these Rules shall be liable to, in the sole and absolute discretion of the Board or the Stewards:
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.”
[23] In determining an appropriate penalty in these cases we have taken into account the following matters.
[24] The aggravating factors are that Mr Robinson injected the Kynoselen himself without taking necessary precautions to ensure he was acting within the Rules. He also made false statements which prolonged the investigation.
[25] To Mr Robinson’s credit he admitted these breaches, and he has no previous convictions.
[26] Although Mr Carmichael has submitted that a fine or a disqualification would be an appropriate penalty in this case, we do not agree that a fine is appropriate. It is also relevant that Mr Robinson’s financial position is described by him as being “dire”, and we assess that he is not in a position to pay a substantial fine. Other penalties cited in relation to the use of Kynoselen containing Heptaminol have been in relation to the use when the labelling was misleading. This is not the case here. In this case Mr Robinson has been negligent in failing to the heed the warnings on the packet.
[27] In relation to the Prohibited Substance charge we have decided that Mr Robinson will be disqualified for a period of six (6) months. This period of disqualification will commence on 14 May 2011 and will conclude on 13 November 2011. The delay in the commencement of the disqualification is to give Mr Robinson time to put his greyhound racing affairs in order. No fine will be imposed in this case.
[28] In relation to the false statement charge we have decided that Mr Robinson will be disqualified for a period of three (3) months, and this term of disqualification will be served concurrently with the disqualification set out in para. [27] above. This disqualification will also commence on 14 May 2011. Again no fine will be imposed in this case.
[29] On the day of the hearing Mr Carmichael sought the disqualification of “Brasch”. This order was made orally that day and it is now confirmed in this decision. Rule 87.4 provides as follows.
“87.4 Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”
We confirm the order that “Brasch” (4) be disqualified from Race 2, the Challenge Opawa All Up Stakes, at the Christchurch Greyhound Racing Club’s meeting held at the Addington Raceway on 28 January 2011, and that the stake money earned by that Greyhound be refunded to GRNZ for payment as per the amended placings.
[30] No costs were sought by the Racing Integrity Unit. There will however be an order that Mr Robinson pay costs of $700-00 to the Judicial Control Authority for Racing.
__________________ _________________
J. M. Phelan K. G. Hales
Chairman Committee Member
hearing_type: Non-race day
Rules: 87.1 and 88.1
Informant: Mr B Kitto - Racecourse Inspector
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent: Mr M A Robinson - Owner/Trainer
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