Non Raceday Inquiry RIU v P Lowen – Decision dated 31 October 2016 – Chair, Mr M McKechnie

hearingid: 94136d6c8bc1f5b02084843966d9c33b

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 02/11/2016

hearing_title: Non Raceday Inquiry RIU v P Lowen - Decision dated 31 October 2016 - Chair, Mr M McKechnie

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE A NON-RACEDAY

JUDICIAL COMMITTEE

IN THE MATTER of the New Zealand

Rules of Greyhound Racing

BETWEEN

RACING INTEGRITY UNIT

Andy Cruickshank

Investigator

INFORMANT

AND PETER LOWEN

Licensed Trainer

RESPONDENT

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

Mr Murray McKechnie, Chairman

Mr Richard Seabrook, Member

Mr Steve Symon, counsel for the Racing Integrity Unit

Mr Peter Lowen

Registrar, Mr Neil Grimstone

DATED THIS 31st DAY OF OCTOBER 2016

1. THE CHARGE AND THE PLEA

1.1 Mr Lowen is charged with a breach of Rule 87.1(9) of the Greyhound Racing Rules. That rule is as follows:

Any person (including an Official) commits an offence if he/she: assaults, obstructs, impedes, abuses, threatens or insults the Board, any member of the Board, a Club, any member of a Club Committee, any Steward, any member of a Judicial Committee and any member of the Appeals Tribunal or any other Official.

The charge faced by Mr Lowen is as follows:

On 30th day of August 2016, at 41 Carrington Crescent, Tokoroa, having been advised by a Racing Integrity Unit Investigator that a kennel inspection was to be undertaken of these premises, obstructed and impeded that kennel inspection, so that the kennel inspection did not take place, thereby committing a breach of Rule 87.1(g) of the New Zealand Rules of Greyhound Racing and is therefore liable to the penalty or penalties which may be imposed pursuant to Rule 88.1 of the said Rules.

1.2 Mr Lowen at an earlier telephone conference on 28 September 2016 indicated that he was pleading not guilty to the charge and that was confirmed at the commencement of the hearing this morning.

1.3 On Friday afternoon last Mr Lowen contacted the Executive Officer of the Judicial Control Authority (the “JCA”) to indicate that the lawyer that it had been intended would represent him was not available for today’s hearing and that in those circumstances he sought an adjournment. This request was referred to the Chairman of the Committee. The application for adjournment was very late. The date set for the hearing was advised as long ago as 28 September in the minute earlier referred to. In those circumstances the request for an adjournment was declined.

2. EVIDENCE FOR THE RACING INTEGRITY UNIT (the “RIU”)

2.1 Mr Andrew Cruickshank and Mr Warwick Robinson gave evidence that on 30 August this year they went to premises at 41 Carrington Crescent in Tokoroa where the kennels operated by Mr Lowen are located. It was Mr Cruickshank’s evidence that they arrived at that address at around 8.55a.m. in the morning. Mr Lowen’s son named Central came to the door and thereafter Mr Lowen was called to the door. It was Mr Cruickshank’s evidence that he advised Mr Lowen that he and Mr Robinson were there for the purposes of undertaking a kennel inspection. It emerged in the cross examination of Mr Cruickshank that the first question he asked of Mr Lowen had reference to Mr Lowen’s wife Julie. There is clearly some background in relation to issues between Mr Cruickshank and Mr Lowen and Mr Lowen’s wife Julie who the Committee was given to understand lives in the Hamilton area. Mr Lowen in his evidence made it clear that he was upset by this question directed to him from Mr Cruickshank. In any event the evidence was clear that immediately Mr Lowen had made it known that Julie was not present Mr Cruickshank raised the question of the kennel inspection. Mr Lowen returned inside the house and Mr Cruickshank related that he and Mr Robinson then walked in the direction of the kennelling area which is situated behind the residence. Soon after Mr Lowen and his son came out of the house. It was Mr Cruickshank’s evidence that Mr Lowen was in an agitated state and said that he should have been given some warning. Further Mr Cruickshank related that Mr Lowen said that they could not just come onto his property without giving him warning and further that they should have rung and advised that they were going to visit. It was Mr Cruickshank’s evidence that Mr Robinson responded by saying to Mr Lowen that there was no requirement for the RIU to give a warning when undertaking a kennel inspection. There was further discussion according to Mr Cruickshank and he said that he sought to explain to Mr Lowen that it was a reasonable time for a kennel inspection to occur. Mr Cruickshank recounted that Mr Lowen became more aggressive and stated that the RIU could not come onto his property at midnight and do whatever they wanted to without asking him and then said that they (the RIU) inspectors could come back in about one hour. Then Mr Cruickshank recounted that he told Mr Lowen that it was not midnight and that being issued with a licence under the Rules of Greyhound Racing was a privilege. Mr Cruickshank stated that Mr Lowen responded to this by saying “just walk out, walk out please, walk out or I will have to get the police to get youse out”. It is said that Mr Lowen then told Mr Cruickshank and Mr Robinson that they could come back in half an hour. It was Mr Cruickshank’s further evidence that he attempted to explain to Mr Lowen that the inspection should take place but said that Mr Lowen told him and Mr Robinson that he would not allow the kennel inspection to take place. Mr Cruickshank said that he asked Mr Lowen why he was not agreeing to the kennel inspection and was told by Mr Lowen that he was having breakfast and further that he needed to take his son “somewhere”. Further Mr Cruickshank said that Mr Lowen said “you have got me at a wrong time”. Mr Cruickshank said that Mr Lowen then added that he was not refusing access but that they would need to come back later. Mr Cruickshank and Mr Robinson then left the property. At about 10.09a.m. Mr Robinson received a phone call on his mobile phone from Mr Lowen. Reference will be made to that when speaking of the evidence of Mr Robinson.

2.2 Mr Robinson’s evidence.

The evidence of Mr Robinson in large part corroborates what was said by Mr Cruickshank. He told Mr Lowen when cross examined that he did not hear the initial request of Mr Cruickshank to Mr Lowen concerning the whereabouts of Mr Lowen’s wife Julie. Mr Robinson recounted that Mr Lowen was agitated and said that we should have given him some warning and that we could not just come onto his property without giving him warning. Mr Robinson in answer to questions from Mr Lowen explained that he had previously visited this property. On that occasion there had been no prior warning and no objection was taken. Further that inspection had found nothing was of concern or out of order. Mr Robinson confirmed the evidence of Mr Cruickshank about the discussion in relation to midnight and coming back in one hour. Mr Robinson heard Mr Lowen say “just walk out, walk out please, walk out or I will have to get the police to get youse out”. Mr Robinson confirmed that Mr Lowen then went on to say that they could come back in half an hour. Mr Robinson further confirmed the advice from Mr Lowen about having breakfast and taking his son “somewhere”. Mr Robinson recounted that around 10.09a.m. on the morning of 30 August this year he received a telephone call on his mobile phone from Mr Lowen telling him that he and Mr Cruickshank could undertake a kennel inspection. The evidence from Messrs Cruickshank and Robinson was at by that time they were on their way to Te Awamutu to conduct a kennel inspection there.

3. EVIDENCE OF MR LOWEN

3.1 Mr Lowen told the Committee that there had been no prior advice of the inspection. He confirmed that he was having breakfast at the time that Messrs Cruickshank and Robinson arrived. He recounted the first question put to him by Mr Cruickshank and said that he was upset by that. This because he said Mr Cruickshank knew the whereabouts of his wife Julie and ought therefore not to have been asking him whether she was at the property in Tokoroa. Mr Lowen said that he thought that the time of the inspection was unreasonable and “anything before 9.00a.m. is unreasonable”. When speaking about the threat to call the police Mr Lowen confirmed that he had said that he would call the police. He did not do so. When explaining why he made reference to the police he said that Mr Cruickshank “would not move”. He said further “I felt threatened by Mr Cruickshank”. There was nothing in Mr Lowen’s evidence to suggest that Mr Cruickshank’s attitude, language or physical conduct posed any threat. When questioned by Mr Symon Mr Lowen was unable to explain why he had not suggested to Messrs Cruickshank and Robinson that they might wait on the premises for – say – ten or twenty minutes while he finished breakfast, took his son to an appointment which Mr Lowen said was only a few minutes away and then undertake the inspection upon his return. Nor was Mr Lowen able to explain why he did not invite Messrs Cruickshank and Robinson to undertake the inspection or at least commence the inspection while he was delivering his son to his appointment at another part of Tokoroa.

4. DISCUSSION

4.1 The evidence clearly establishes that Messrs Cruickshank and Robinson were obstructed or impeded from undertaking the kennel inspection. The Rule 87.1(g) sets out a number of actions which are not permitted. These various actions are disjunctive. The Committee finds that there was obstruction and impeding of the two RIU representatives. There is nothing in the rules of greyhound racing to require advance notice of kennel inspections. Not a great deal of imagination is required to explain why advance notice is inappropriate. Further the evidence from Mr Robinson was that he had undertaken many kennel inspections over the years and that advance notice was most unusual. The Committee does not accept that 9.00a.m. in the morning is an unreasonable time at which to visit the kennels of a licenced greyhound trainer.

4.2 The reference by Mr Lowen to the police was entirely unnecessary. This is not a matter which concerned the police and Messrs Cruickshank and Robinson were lawfully at the property. They were wise to leave when there was reference to the police.

4.3 This is a situation that need not have developed in the way it did. Circumstances that have brought Mr Lowen before the Committee could have been avoided had he suggested that Messrs Cruickshank and Robinson wait a few minutes while he delivered his son to his appointment and then all three could have undertaken the kennel inspection together. No such suggestion was made. All that Messrs Cruickshank and Robinson knew was that at some stage Mr Lowen was going to be returning. It was first suggested that they come back in one hour and then suggested sometime later that they might come back in half an hour. Given the reference to the police and the attitude which Mr Lowen had demonstrated it is unsurprising that Messrs Cruickshank and Robinson decided to move to another kennel inspection at a location away from Tokoroa.

4.4 For the reasons set out we find that the charge has been proved and that Mr Lowen is guilty of a breach of Rule 87.1(g).

5. PENALTY DECISION

5.1 Mr Cruickshank has filed detailed penalty submissions on behalf of the RIU. These submissions draw attention to the well-known sentencing principles: refer paragraph 15 of the submissions. These four principles were set out many years ago in the well-known decision of Mr Justice Warwick Gendall as he later became. Mr Symon in support of the written submissions contended that in this case the first three of those principles are of particular significance. These, shortly stated, are punishment, deterrence and demonstration of disapproval.

5.2 We are told that this is the first prosecution under this rule. Mr Lowen has a previous conviction under the Rules of Greyhound Racing in November 2013. That related to a prohibited substance and is of no real relevance to the charge with which we are concerned today.

5.3 Mr Cruickshank in his evidence spoke of an inspection of the kennels of Mr Lowen in August 2015 in the company of an SPCA inspector when concerns were raised. No charge followed. Mr Cruickshank also spoke of events concerning a greyhound called Matalino Twist in 2016. That matter has apparently been resolved without any charge being laid. Mr Lowen agreed to pay a modest sum to Greyhound Racing New Zealand and he has told the Committee today that the amount has almost all now been paid.

5.4 Mr Cruickshank in his submissions to which Mr Symon addressed oral submissions seeks a disqualification of three (3) months and a payment of costs towards the RIU and the JCA.

5.5 There was considerable discussion with the Committee concerning the difference between the imposition of a period of disqualification and the imposition of a period of suspension. In summary the difference is that if there be a disqualification Mr Lowen will not be able to have any connection with his dogs or attend any greyhound racing meeting. If there is a period of suspension he will not be able to race or train his dogs but he will be able to attend greyhound racing meetings as a spectator, not in his capacity as a trainer.

5.6 Mr Lowen told the Committee that he has four (4) dogs in his kennels and that he is the owner of each of these.

5.7 Messrs Cruickshank and Symon emphasised the need to convey to greyhound racing the seriousness of the offence in as much as the inspection of kennels without obstruction or hindrance is critical to maintaining the welfare of animals and the integrity of the conduct of greyhound racing. The Committee has no issue with that and is perfectly aware of why RIU inspectors should undertake kennel inspections without notice in order to ensure that all the relevant rules and obligations are being met.

5.8 As noted above this is the first prosecution under this rule. In those circumstances it would not, in the Committee’s view, be appropriate to punish Mr Lowen more harshly than might otherwise be thought appropriate. The message that the Committee seeks to convey to the industry is that a breach of this rule is serious. Future breaches and breaches by commercial kennels are likely to result in penalties more significant than that which we have considered to be appropriate in this case.

5.9 As observed earlier in the decision the position arrived at on the morning of 30 August of this year could have been avoided had there been a little less aggression and a little more common sense. If that had happened then the inspection may well have taken place without incident. We consider that the position can be met by a period of three (3) months suspension. We impose that penalty and it will commence immediately. There have been significant costs incurred by both the RIU and the JCA. Mr Lowen must make a meaningful contribution towards those although the figure which we have arrived at is nowhere near an indemnity figure – in other words it does not meet all of the costs of either the RIU or the JCA. In each case Mr Lowen will pay the sum of $500.00. That is towards the costs of the RIU $500.00 and towards the costs of the JCA $500.00.

DATED at Rotorua this 31st day of October 2016

Murray McKechnie

Chairman

Signed to pursuant to Rule 91.14

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: