Non Raceday Inquiry RIU v MK Dempsey – Decision dated 17 September 2015 – Chair, Mr KG Hales

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hearing_title: Non Raceday Inquiry RIU v MK Dempsey - Decision dated 17 September 2015 - Chair, Mr KG Hales

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Before a Judicial Committee at Christchurch - Information A6651

Racing Integrity Unit

Peter Ross Lamb – Racing Investigator

(Informant)

And

Michael Keith Dempsey – Licensed Greyhound trainer

(Respondent)

DECISION OF JUDICIAL COMMITTEE DATED 17th September 2015

Mr Michael Dempsey, a Licensed Greyhound Trainer, is charged with breaches of Rules 86.1 and 86.3 of the Rules of Greyhound Racing.
Rule 86.1 reads 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 reads as follows:

“Without limiting any of the provisions of these Rules, the Owner and Trainer or the person for the time being in charge of any Greyhound brought on to 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”.

Information no. A6651 alleges:

THAT, on the 31st July 2015, Michael Keith Dempsey, being the registered trainer of the greyhound OUTBACK BILL presented the greyhound to race in Race 8, the Mac Development Dash, at the Christchurch Greyhound Racing Club meeting with a Prohibited Substance, namely Caffeine, in its system. This is in breach of Rule 86.1 and Rule 83.3 of the Greyhound Racing New Zealand Rules.

And you are therefore liable to the penalty or penalties which may be imposed in accordance with Penalty Rule 88.1 and the greyhound is liable to the penalty which may be imposed in accordance with Rule 86.4”.

The charge was admitted and is therefore deemed to be proved.

Preliminary matters

Mr PR Lamb, Racing Investigator for the RIU produced to the hearing the following exhibits:

• Authority to charge signed by the General Manager of the RIU, Mr M Godber;
• Information no. A6651;
• Charge Sheet;
• Charge Rule and penalty provisions;
• Certificate of Analysis;
• RIU Sample Identity Record;
• RIU Swabbing record;
• Agreed Summary of Facts
• Letter from Dr Malcolm Jansen – Veterinary Advisor for the NZGRA – Caffeine Prohibited Substance;
• Penalty Submissions;
• Race results.

Mr Dempsey confirmed to the hearing that he had been provided with all of the above information prior to the hearing and that he did not challenge the contents of the various documents.

The Facts

1. On the 31st July 2015, “OUTBACK BILL” was correctly entered and presented to race by Mr Dempsey in Race 8 at the Christchurch Greyhound Racing Club’s meeting at Addington Raceway.

2. “OUTBACK BILL” won the race and earned a winning stake of $840 which was paid to Mr Dempsey.

3. Following the race, “OUTBACK BILL” was routinely swabbed. Mr Dempsey was present and did not contest the swabbing process.

4. All samples from the meeting were couriered to the NZ Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the NZGRA.

5. On 11th August 2015 the Official Racing Analyst reported in writing that the sample from “OUTBACK BILL” had tested positive to caffeine, a Category 4 Prohibited Substance that has the ability to improve or impact the performance of a greyhound.

6. Mr Dempsey was interviewed at his property in Hororata on Friday 14th August 2015. He was co-operative and when informed of the nature of the positive test, he advised that he suspected that the greyhound may have got access to an open box of chocolates when the greyhound was left unattended in the house (by another person).

7. Mr Dempsey advised that he did not wish to have the reserve sample from the swab tested.

8. An identical box of “Old Gold Continental” chocolates has since been sourced and sent to the NZ Racing Laboratory for testing. Listed among its ingredients are cocoa beans which are known to contain caffeine.

9. Mr Dempsey was advised of the results from the Laboratory in relation to the sample of chocolates.

Mr Dempsey’s response

Mr Dempsey told the hearing that he does not as a rule allow his greyhounds inside his house, but that on this occasion, it was his partner, who treated this dog as a pet, who let the dog inside. At first he wasn’t sure if the greyhound had eaten chocolates, but his partner confirmed to him that she understood that it had.

Penalty Submissions

The penalty provisions that apply in this case are set out in Rule 88.1 which reads:

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.

The rules also require mandatory disqualification of the greyhound. Rule 86.4 reads:

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.

Mr Lamb submitted that four sentencing principals should be considered, namely that of punishment for the breach, the need to deter others from committing like offences, the need for denouncement and the need for rehabilitation of the offender.

Reference was made to two precedent decisions, as follows:

RIU v R Blackburn – August 2015 – Caffeine positive for one greyhound. Second offence – Fined $4,000 and greyhound disqualified. Caffeine administered as part of a feed supplement

RIU v TA Agent – January 2015 - Procaine with one greyhound (Category 5; 3 month’s disqualification and/or $4,000) – administered as penicillin - penalty imposed $3,000 and greyhound disqualified - careless administration

Mr Lamb also referred to 3 other cases (pre penalty increase) mainly involving the careless administration of products containing caffeine.

RIU v JT McInerney 4/12/13 – Caffeine positive for two greyhounds – Fined $3,000 and greyhounds disqualified.

RIU v A Williams – Caffeine positive with two greyhounds – fined $2,000.00 and greyhounds disqualified.

RIU v M Flipp – Caffeine positive with four greyhounds – fined $3,000.00 and greyhounds disqualified.

Mr Lamb submitted that there were aggravating features to be considered namely:

Mr Dempsey was culpable of low level negligence in that he failed to take any suitable steps to prevent this matter occurring after he became aware that there was a possibility that the greyhound had obtained access to chocolate, the day prior to the race meeting. He was aware that chocolate contained caffeine and that it is a Prohibited Substance. However, he elected to race the greyhound the following day when there was ample opportunity to withdraw it from its racing engagement.

Mitigating Factors submitted by Mr Lamb were that there was no malicious intent on Mr Dempsey’s part. He said that Mr Dempsey was negligent and that it was his partner who was in charge of the greyhound when it ate the chocolate. He admitted the breach at an early opportunity and co-operated fully throughout the investigation. Mr Dempsey has not breached this rule previously.

In response, Mr Dempsey said that he made a mistake by not scratching “OUTBACK BILL” after he became aware that it had eaten chocolate. He accepted that he “took a risk” by starting the greyhound and that perhaps he was “blasé" about it. However, he was not expecting his greyhound to win and that it won, because the favourite was knocked over early in the race. He said that the time recorded was not very fast, and that his greyhound has run faster in earlier races. He said that he is only a hobby trainer and does not make any profit from greyhound racing. He said that he does not have a TAB account. (Mr Lamb had confirmed earlier in the hearing that there was no unusual betting patterns on this race).

Penalty Decision and Reasons

Notwithstanding the penalties imposed in the decisions referred to above, we take as a starting point, a fine of $5,000, in accordance with the Judicial Control Authority’s Penalty Guide. Against that, we must then consider aggravating and mitigating factors.

The aggravating factor in this case is Mr Dempsey’s admission that he “took a risk”. He said that he was “blasé” about it. Having regard to that, this Committee is sorely tempted to consider an uplift of $1,000.00 which would make our starting point, $6,000.00. However, for reasons which will follow, we do not impose such an uplift.

Mr Dempsey is a hobby trainer. We accept his explanation that he was not responsible for allowing the greyhound inside. He has not breached this rule before and has admitted the breach at an early opportunity. He has been co-operative throughout the RIU’s investigation. His level of negligence was not high and in fact, it has been described by Mr Lamb as “low level negligence”. His case is not as serious as the other cases which we have been referred to. Mr Dempsey presented as being remorseful for his unwise decision to start “OUTBACK BILL” in the race.

Taking all of those matters into account, we are able to afford Mr Dempsey a discount of $2,500.00 on our starting point.

Penalty

Mr Dempsey is fined $2,500.00.

Costs

In this case the RIU does not seek an award of costs. As the case has been heard on a race day, no order as to costs is made in favour of the JCA.

Disqualification & Stakes

“OUTBACK BILL is disqualified from its first place in the “Mac Development Dash” run at the Christchurch Greyhound Racing Club’s meeting on 31st July 2015. Stake money paid to Mr Dempsey is to be refunded and re-distributed in accordance with the amended placings which are:

1st – FIREMANS GALAXY (6)
2ND – MEMPHIS GIRL (1)
3RD – LLABB (4)

KG Hales              Chairman

G Clapp               Committee Member

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