Non Raceday Inquiry RIU v B Goldsack – Decision dated 25 March 2019 – Chair, Mr T Utikere

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hearing_title: Non Raceday Inquiry RIU v B Goldsack - Decision dated 25 March 2019 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

------IN THE MATTER of the Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND-B GOLDSACK

Respondent

Judicial Committee:-Mr T Utikere (Chairman)

Mrs N Moffatt (Member)

Parties:--Mr S Irving (for the RIU)

Mr B Goldsack (as the Respondent)

DECISION OF JUDICIAL COMMITTEE DATED 25 MARCH 2019

FACTS

[1] The Respondent has been charged with a breach of Rules 61.1 and 61.3 of the New Zealand Rules of Greyhound Racing.

[2] The relevant Rules are as follows:

Rule 61.1: 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 61.3: 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.

[3] The specific Information alleged:

Information No A7177

“THAT on 21 January 2019 Brian Leslie Goldsack, licensed trainer and person in charge of the greyhound ‘Barbarossa Boy’ who ran in Race 1 at the Palmerston North Greyhound Racing Club meeting at Manawatu Raceway, failed to present the greyhound free of the Category 4 Prohibited Substance, Caffeine and its metabolites, being an offence under the provisions of Rules 61.1 and 61.3 and punishable pursuant to Rule 63.1 and 63.4 of the New Zealand Greyhound Racing Association Rules.”

[4] The relevant Penalty provisions are contained in Rules 63.1 and 63.4 which state:

Rule 63.1: “Any Person found guilty of an Offence under these Rules shall be liable to:

a. a fine not exceeding $10,000 for any one (1) Offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.”

Rule 63.4: “Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”

PRELIMINARY MATTERS-

[5] The Committee had previously issued a Minute dated 11 March which identified that the Committee was in receipt of the Notice of Appointment, the Charge Rules and Penalty Provisions and an Authority to Charge Letter from the General Manager of the Racing Integrity Unit (RIU), Mr M Godber. At that point we were also in receipt of an Agreed Summary of Facts along with the Informant’s Written Penalty Submissions.

[6] The Minute also confirmed that in light of the respondent’s endorsement of a Guilty plea, this matter would be dealt with on the papers with the consent of both parties. The Committee then indicated it would issue a Reserved Decision in writing once the RIU had provided clarity regarding a previous prohibited substance breach by the respondent and Mr Goldsack’s Penalty Submissions in reply. Both parties have complied with that direction and we are now in a position to issue a decision on the matter before us.

AGREED SUMMARY OF FACTS

[7] The RIU submitted the following Agreed Summary of Facts:

The Respondent Brian Leslie Goldsack is 59 years old and is a licenced Owner Trainer under the Rules of New Zealand Greyhound Racing (GRNZ). He has been involved in the greyhound industry since 1976 when he first owned greyhounds and GRNZ records detail he first held a Trainer’s licence in 2008.

He currently trains 11 racing greyhounds from his property at Waitotara and is assisted by his brother, licensed handler Ray Goldsack.

Mr Goldsack jointly owns (with S. Lloyd) and trains the dog ‘Barbarossa Boy’ which won Race 1, the ‘Formpro Ratings Free Every Monday C1’, at the Palmerston North Greyhound Racing Club’s meeting at Manawatu Raceway on 21 January 2019. ‘Barbarossa Boy’ earned gross stake money of $793.

The greyhound was post-race swabbed (#099367) and on 11 February the NZ Racing Laboratory Services issued a certificate of analysis detailing the sample positive to Caffeine and its metabolites Theobromine, Theophylline and Paraxanthine.

Caffeine is a Category 4 Prohibited Substance per the GRNZ regulations.

On 12 February Ray Goldsack was interviewed at the property where he also resides. Ray Goldsack explained that he has an active involvement with the dogs and had been ‘in charge’ of the race dogs that day. He stated that he transported 3-4 dogs to the meeting with ‘Barbarossa Boy’ travelling in the modified back seat of their Honda vehicle, a second dog in the boot of the vehicle and 1-2 in the kennel trailer towed by the vehicle.

On his way to the meeting Ray stopped at BP Bulls and purchased a takeaway coffee which he kept in the cup-holder of the centre console. He then had to collect meat from Levin and stopped to empty the dogs out near Foxton. He emptied the dogs one at a time with ‘Barbarossa Boy’ the first.

When he returned to continue his journey he noticed that the coffee cup from the centre console was now on the back seat He believes the cup had been approximately one quarter full and could see evidence of its contents on the carpeted board over the back seat so thought it would have soaked into the carpet with the dog not ingesting any.

Ray did not advise Brian of the incident nor did Brian attend the race meeting that day. Brian stated that if he had of been advised of the incident he would have scratched the dog immediately.

Ray has been involved in greyhound racing for approximately four years. Brian has been a licensed trainer for approximately 11 years. He has one previous charge for breaching the GRNZ Prohibited Substance Rule from a caffeine positive in 2009.

DECISION

[8] As the charge was admitted, the Committee deemed the charge proved.

RIU’S PENALTY SUBMISSIONS

[9] Both parties were invited to file written Penalty Submissions. For the RIU, Mr Irving provided the following Submissions:

The Respondent, 59 year old Brian Leslie Goldsack is a Licensed Owner Trainer under the Rules of Greyhound Racing New Zealand. He has held his trainers licence for 11 years and currently trains 11 race-dogs out of his home property at Waitotara.

The Respondent has admitted a breach of Rule 61.1 & 61.3. The circumstances are detailed in the attached Summary of Facts which have been agreed. The penalties which may be imposed are detailed in the attached Charge Rule and Penalty Provisions Document.

PENALTY SUBMISSIONS

The RIU believes that an appropriate penalty for this breach is a $2,500 fine.

Caffeine is a central nervous system stimulant of the methylxanthine class of compounds. It is both a central nervous system and a metabolic stimulant and is capable of reducing physical fatigue. It can therefore improve both sprint and endurance performance.

Caffeine is classed as a Category 4 Prohibited Substance under the Rules of greyhound racing. Although there is no requirement to establish the cause of administration for a breach of the Prohibited Substance Rule, the RIU investigation concluded that the positive swab resulted from ‘Barbarossa Boy’ ingesting coffee from a takeaway cup while being transported to the race meeting by Ray Goldsack.

As per the JCA Penalty Guidelines the starting point for a Category 4 Greyhound ‘Presentation’ offence is six months Disqualification and/or a $5000 Fine. Analysis of TAB betting records revealed no unusual bets associated with the greyhound, the trainer / owner or the race. Under Rule 61.4 ‘Barbarossa Boy’ is required to be disqualified from the race.

PREVIOUS RELEVANT CASES

RIU v D (17.09.2015) – Caffeine positive in greyhound from ingesting chocolate biscuits. $2500 fine.

RIU v B (24.12.2018) – Caffeine positive in greyhound from ingesting tea bags. $2000 fine.

The similarity to RIU v D (as opposed to RIU v B) is the awareness the dog had possibly ingested a caffeine containing product and “took a risk by starting the greyhound and that perhaps he was blasé about it. However, he was not expecting his greyhound to win…” In this case Ray Goldsack (albeit not the Respondent) was aware the dog had accessed his coffee and took a known risk by starting the dog.

MITIGATING FACTORS

It is acknowledged that the Respondent and his brother have been cooperative throughout the investigation. The Respondent has admitted the breach at the first opportunity. The Respondent has been involved in greyhound industry for a lengthy period of time. The Respondent had no knowledge that the dog had ingested caffeine and stated that if he had of been advised of the incident he would have scratched the dog immediately.

AGGRAVATING FACTORS

Ray Goldsack was careless in that he left the dog unattended in a position to access the coffee. Having been involved in the greyhound business for four years, Ray was also careless in not surmising that the dog may have ingested the coffee and then not informing the Respondent of the incident.

COSTS

The RIU are seeking no costs.

CONCLUSION

Given the recommended starting point of $5000, the mitigating and aggravating factors as listed and the overall circumstances considered in this case, I believe a $2,500 fine is an appropriate penalty.

RESPONDENT’S PENALTY SUBMISSIONS

[10] In response, Mr Goldsack submitted written Penalty Submissions that identified his position very clearly. He indicated that he had engaged in conversations with Mr Irving about the positive swab on BARBAROSSA BOY, and that he accepted responsibility for the charge.

[11] He rejected the RIU’s submission of a $2,500 fine on the basis that the case of RIU v Briggs provided facts that were practically identical to the current offending, where the dog in that case returned a positive after consuming tea bags that the trainer was unaware of. That case identified that the trainer at whose facility the dog was staying at was subsequently made aware some days after the dog had raced that it had consumed tea bags, but had not informed Mr Briggs as the licensed trainer.

[12] Mr Goldsack drew parallels in that his brother who was in charge of BARBAROSSA BOY at the time, knew there was a possibility that the dog had consumed coffee, but had not informed Mr Goldsack until weeks later. Mr Goldsack stated that if he had been made aware, then he would have scratched his dog immediately.

[13] Mr Briggs was fined $2,000; and as the respondent believed that his case was a replica of Briggs, he submitted that he should be fined the same amount as in that case.

REASONS FOR PENALTY

[14] The Committee has considered the submissions from both parties, and thanks them for complying with the directions for the filing of their submissions.

[15] Caffeine is categorised as a Category 4 Prohibited Substance; so under the JCA Penalty Guidelines, attracts a $5,000 fine starting point. While Disqualification is also identified as a potential starting point, we do not believe it is warranted for the current breach. Accordingly, we have regard to the $5,000 fine as our starting point.

[16] In the Bennett (RIU v Bennett (1 July 2016)) Decision, the Committee made reference to the efforts being made within the greyhound industry to signal the concern around positives arising from negligent behaviour. Specifically, that “... 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…”.  (lbid. at Para [28]). This Committee considers it appropriate to bear this in mind when addressing the question of penalty.

[17] Mr Irving has referred us to two previous cases: RIU v Dempsey and RIU v Briggs. Mr Goldsack also relies heavily on the latter of the two to support a penalty submission of a $2,000 fine.

[18] This Committee is very familiar with the Briggs decision, and the cases that are canvassed at paras 16 -18 of that decision. (RIU v Bennett (1 July 2016), RIU v Finn (28 September 2015) and RIU v Blackburn (18 August 2015)). The cases that are cited in Briggs; identify that the method of ingestion was via a Nutrience product and kibble feed which contained ‘green tea extract’. We note that the RIU appear to have accepted the respondent’s explanation that the caffeine came to be ingested by BARBAROSSA BOY when it was able to gain access to a takeaway coffee that was left unattended in the vehicle that BARBAROSSA BOY was being transported in, along with two or three other dogs.

[19] This was based on the observations made by the respondent’s brother who was the driver of the vehicle and responsible for the dogs on the day. Mr Goldsack was apparently not advised of this until some weeks after the incident, by which time the dog had already been presented to, and did, race at the Palmerston North Greyhound Racing Club’s Meeting on 21 January 2019.

[20] When we consider the current case, it is clear that there are some points of difference with it and Briggs. The trainer in Briggs was defined as a ’Hobby’ Trainer, whereas Mr Goldsack has been involved in the industry over many years and has been licensed as a trainer for 11 years and currently trains 11 greyhounds from his property. This, along with the fact that Mr Briggs had only been a Licensed Trainer for three months are distinct points of difference.

[21] In Dempsey, the respondent was aware that there was a possibility that the dog had ingested chocolates, but he decided to run the risk and race his dog anyway. In the current case, while the Respondent’s brother may have been aware that there was a possibility BARBAROSSA BOY may have ingested caffeine via the spilt coffee, we accept that Mr Goldsack was not aware that this was the case.

[22] Nonetheless, as the licensed trainer, Mr Goldsack must shoulder some responsibility in neglecting to have systems in place that would ensure that those involved in the care and custody of his dogs on his behalf, reported such possibilities to him as the ultimate person who is responsible. He himself has indicated that if he had been advised of the incident, then he would have immediately scratched the dog from the race.

[23] Mr Briggs, along with the trainer at whose premises the dog (BIGTIME BOY) was domiciled, were not aware that the dog had eaten teabags; the source of the caffeine, at the time the dog was presented to race. In the current context, this is somewhat different as while the respondent was not aware, Mr Ray Goldsack knew that there was a possibility BARBAROSSA BOY had accessed the coffee en route to the races, and in starting the dog, a known risk did exist for the Goldsack operation.

[24] We do not consider there to be any aggravating features to warrant an uplift from our starting point. It is accepted that there was no deliberate administration, and an analysis of betting records do not identify any concerns.

[25] In mitigation, the respondent has admitted the breach at the first opportunity and has been co-operative with the investigation process. We also accept that there is a low level of negligence on the part of Mr Goldsack. He had no idea that his dog had ingested caffeine, prior to it racing on 21 January; largely due to the fact that while there was an acute possibility that the dog had gained access to a takeaway cup of coffee whilst being transported with other dogs, this was not communicated to him. As the Licensed Trainer, the respondent was ultimately responsible and that has led to the charge being preferred against him; for which he has taken responsibility.

[26] Mr Goldsack has a previous breach relating to caffeine back in 2009. As indicated in the Minute, Mr Irving has provided further details surrounding that previous charge. Our review of that information, and the historical nature of the charge originating some 10 years ago, leads us to view the previous breach as a neutral factor for the purposes of assessing penalty.

[27] After considering all factors, in our assessment a fine of $2,500 is appropriate.

PENALTY

[28] Mr Goldsack is fined $2,500.

ORDERS

[29] -The provision of Rule 63.4 directs the requirement for BARBAROSSA BOY to be disqualified from Race 1 at the Palmerston North Greyhound Racing Club’s Meeting on 21 January 2019.

[30]-The following order is made:
A.-That BARBAROSSA BOY is disqualified from Race 1 (Formpro Ratings Free Every Monday C1) of the Palmerston North Greyhound Racing Club’s Meeting on 21 January 2019. Any financial benefits paid, or to be paid, as a result of BARBAROSSA BOY’s placing in that race are to be refunded for redistribution in accordance with the amended placings.

COSTS

[31] The RIU do not seek any costs. While some costs have been borne by the JCA, the Committee declines to exercise its discretion to make such an order.

Signed at Palmerston North this 25th day of March 2019.

Mr Tangi Utikere

Chairman

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