Non Raceday Inquiry RIU v PG Lowen 31 October 2013 – Decision dated 15 November 2013
ID: JCA16262
Decision:
Non Raceday Inquiry RIU v PG Lowen 31 October 2013
Rules: 87.1 and 87.3
Information Number: A2216
Informant: Bryan James Oliver – Racing Investigator for the Racing Integrity Unit
Respondent: Peter Gregory Lowen
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT CAMBRIDGE
IN THE MATTER of the Rules of New Zealand Greyhound Racing Association
IN THE MATTER of Information No. A2216
BETWEEN BRYAN JAMES OLIVER, Racing Investigator for the Racing Integrity Unit
Informant
AND PETER GREGORY LOWEN
Respondent
Judicial Committee: BJ Scott, Chairman – AJ Godsalve, Committee Member
Present: Mr BJ Oliver, for the Informant - Mr PG Lowen, the Respondent
Date of Hearing: 31 October 2013
Date of Decision: 15 November 2013
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charge:
(1) Information No: A2216 alleges that:
(2) On the 29th September 2013, Peter Gregory Lowen was the Licensed Trainer of the greyhound Legal Aid, which was presented for and raced in race six at a race meeting conducted by the Auckland Greyhound Racing Club at Manukau, when the said greyhound was found to have had administered to it a Prohibited Substance, namely Benzydamine, being an offence under the provisions of Rules 87.1 and 87.3 and punishable pursuant to Rule 89.1 of the New Zealand Greyhound Racing Association Rules.
The Rules:
(3) Rule 87 of the Rules of New Zealand Greyhound Racing Association provide as follows:
87.1 The Owner, or person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substances
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, examinations or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty an offence.
The Penalty Rule:
(4) The penalty Rule is Rule 89.1 which provides:
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 offence; and/or
b. Suspension; and/or
c. Disqualifications; and/or
d. Warning off.
The Plea:
(5) The above charge and Rules were read to Mr Lowen and he advised that he admitted the charge.
Summary of Facts:
(6) Mr Oliver produced a letter dated 21st October 2013 from the General Manager of the Racing Integrity Unit authorising the charge to be laid against Mr Lowen.
(7) Mr Oliver produced the Certificate of Analysis from New Zealand Racing Laboratory Services Limited dated the 8th October 2013 confirming that Benzydamine had been detected in both samples.
(8) Mr Oliver then presented his summary of facts as follows:
(9) Peter Gregory Lowen (the Respondent) is charged with breach of Rule 87.1 and 87.3 of the Rules of the New Zealand Greyhound Racing Association in that he was the Trainer of the greyhound LEGAL AID which returned a positive test to the drug Benzydamine.
(10) The charge proceeds under what is commonly referred to as the Drug Negligence Rule.
(11) The facts of the matter are not in dispute and may be summarised as follows:
(12) The Respondent is a Licensed Trainer under the Rules of the New Zealand Greyhound Association.
(13) On the 29th of September 2013, Mr Lowen was the Trainer and for the time being in charge of the Greyhound LEGAL AID which had been correctly entered and started in Race 6 at a Race Meeting conducted by the Auckland Greyhound Racing Club at Manukau Stadium.
(14) LEGAL AID ran 5th in that race and was selected for a post race swab. The greyhound was swabbed in the presence of Mr Lowen at 4.40pm that day. He has signed the relevant portions of the swab card and did not indicate any irregularities in the swabbing process.
(15) All samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the New Zealand Greyhound Racing Association.
(16) On the 8th of October 2013, the Official Racing Analyst reported in writing that the sample from LEGAL AID had tested positive to Benzydamine.
(17) Benzydamine is a locally acting nonsteriodal anti inflammatory drug with local anaesthetic and analgesic properties for pain relief and anti-inflammatory treatment of inflammatory conditions of the mouth and throat. It is a component in many proprietary cough and sore throat remedies available from any pharmacist. It suppresses coughs and has mild anaesthetic properties.
(18) Benzydamine is a prohibited substance within the meaning of the Rules and its presence in a Raceday sample is , prima facia, a breach of the Rules.
(19) Mr Lowen was interviewed at his property in Tokoroa on Monday 14th October 2013. He freely admitted that he had used the proprietary product “Difflam” in a spray format on his dog LEGAL AID the evening before it raced at the Auckland Greyhound Racing Club meeting on 29 September 2013. He said that he had noticed the dog coughing a lot and looking lethargic. A friend who was at his place that evening produced the product “Difflam” that he had been using for his own cough and Mr Lowen sprayed three puffs down the throat of LEGAL AID.
(20) Next morning the dog still appeared lethargic and Mr Lowen noticed that he had coughed up overnight what appeared to be a piece of sponge. He then rang the Secretary of the Auckland Greyhound Racing Club to scratch the dog. Unfortunately he rang at 8.20am thinking it was 7.29am as daylight saving had been instituted overnight. When told that the scratching would have been a late scratching because of the time Mr Lowen opted to leave the dog in the field.
(21) On arrival at the Meeting the dog was vetted and kennelled. Prior to the race it was vetted again and its temperature taken. The temperature was acceptable and the veterinarian declared the dog fit to start.
(22) The dog ran 5th and Mr Lowen indicated that he was satisfied with the run. The Stipendiary Steward aware of the attempt to scratch the dog, ordered the swab which subsequently was returned as positive.
General Submissions by the Informant:
(23) Whilst Mr Lowen has strictly speaking administered the product which is the source of the prohibited substance to the greyhound, the Informant accepts that he did not knowingly administer the drug Benzydamine with the intention of affecting the performance of the greyhound. For that reason he has been charged with a breach of the Drug Negligence provisions of the Rules, rather than the more serious charge of alleviated the cough the dog had rather than any attempt to affect it performance
(24) Mr Lowen resides in Tokoroa where he trains a small number of greyhounds. He has been a Trainer since August 2008. He has no history of previous breaches of these Rules.
General Submissions b y Mr Lowen:
(26) Mr Lowen acknowledged that the summary of facts was correct. He also acknowledged that it was his fault because he did not know if there was any prohibited substance in the “Difflam” and he realises that with hindsight he should have checked the product first.
Penalty Submissions by Mr Oliver:
(25) As I have already said this matter proceeds on the basis that Mr Lowen has been negligent in using a product which is, strictly speaking, not intended as an animal remedy.
(26) On the basis of the strict liability nature of the Rule and the Court of Appeal decision NZGRA v M, Mr Lowen has presented LEGAL AID to the Race with a prohibited substance in its system.
(27) That is a breach of the Rules.
(28) In his favour Mr Lowen has freely admitted to use of the product and he used it in good faith. He had no knowledge of the substances within the product he used.
(29) The most recent cases involving Prohibited Substances are RIU v H (March 2013) where the respondent sough disqualification instead of a $1600.00 fine sought by the RIU. H was disqualified for three months.
(30) In NZGRA v H and H (August 2011) a fine of $1600.00 was imposed.
(31) In RIU v F (August 2013) a fine of $5000.00 was imposed for four breaches of the Rule using the drug caffeine and M (August 2013) was fined $3000.00 for two charges involving the same drug.
(32) It is therefore the submission of the Informant that a fine of $2000.00 be imposed.
(33) The aggravating factors in this case are the use of a product not intended for animal use on the dog the failure to check the product contents.
(34) In mitigation the respondent readily acknowledges the use of the “Difflam” spray and his attempt to scratch the dog because he thought it was lethargic, not because he knew of the drug within the system. This scratching was not proceeded with because it was late. Mr Lowen forgetting about daylight saving.
(35) It is Mr Lowen’s first drug related offence.
(36) Rule 87.4 provides for the mandatory disqualification of the dog from this race. Fifth place provides no monetary reward however the disqualification provision is mandatory. Accordingly, it is submitted that LEGAL AID be disqualified from Race 6 at Auckland on 29 September 2013
(37) At the conclusion of presentation of his penalty submissions the Committee noted that Mr Oliver had not provided copies of the prior decisions that he had referred to. The Committee explained that without those decisions Mr Lowen did not have a proper opportunity to respond.
(38) The Committee adjourned the Hearing to enable Mr Oliver to provide copies of the decisions to Mr Lowen and to the Committee. Mr Lowen was advised that once he had received the copies of the decisions that he was then entitled to make penalty submissions in writing and that the Committee would then make a decision as to penalty.
Penalty Submissions by Mr Lowen:
(39) In his penalty submissions dated 11th November 2013, Mr Lowen accepted full responsibility for Benzydamine being found in the swab.
(40) He apologised for not checking the throat spray out fully before he used it but he said that he did not any time know that it contained a banned product. He also pointed out that the dog in question ran 5th so there was no monetary gain involved. He further said that he was only looking after the health of his dog and he was not trying to improve its speed or stamina in any way.
(41) Mr Lowen said that none of his dogs had previously returned a positive swab when running or placing and he said that this particular dog LEGAL AID had been swabbed on about eight occasions this season.
(42) Mr Lowen said that he has researched banned substances and he has listed those in his kennel block to make sure that it will not happen again.
(43) Mr Lowen further said that he is an Owner/Trainer with a small team of four dogs and he submitted that the positive swab for his dog was not anywhere near the category of the positive swabs in the decisions referred to by Mr Oliver.
(44) Mr Lowen noted that Mr Oliver said that the positive swab for his dog was at the very low end of the scale and he submitted that a fine of $1,000.00 would be appropriate.
(45) Mr Lowen concluded his submissions by again apologising for what has happened and said that he had definitely learnt his lesson.
Reasons for Penalty:
(46) This Committee is aware of the need to protect the Integrity of Racing. This Integrity is paramount and the existence of drugs in a dog in a Race attacks the very core of that Integrity. This is regardless of how the drugs got there.
(47) The facts presented to us in this matter however present a very unusual situation. Mr Lowen has tried to scratch his dog on the day of the races and he tells us that because of the change to daylight saving he did not realise what the time was and that when he tried to scratch the dog he was told that it would be a late scratching. He would have been fined for that but with the benefit of hindsight he realises that such a fine would have been preferable to any penalty imposed in this case. His reason for scratching his dog was because it was lethargic and not because he thought it had a drug in its system. He did, however, by attempting to scratch his dog draw the attention of the Stipendiary Steward to it and even though his dog only ran fifth it was swabbed and proved positive to Benzydamine.
(48) Mr Lowen, as we are told, is an Owner/Trainer and clearly his actions show a certain naivety on his part. The Informant has accepted that the treatment was carried out with the intention of alleviating the cough the dog had rather than any attempt to affect its performance.
(49) Mr Lowen is charged with negligent administration and when one looks at the facts that is certainly the case. The negligence is tempered with a certain amount of naivety and Mr Lowen has already told us that he has taken steps to ensure that that doesn’t happen again and these are very positive steps on his part.
(47) In mitigation we note Mr Lowen’s admission of the breach and his complete cooperation in the investigation process and his remorse that he has conveyed both verbally and in writing to the Committee.
(48) This however is an issue of strict liability and Mr Lowen used a cough mixture intended for human consumption on his greyhound but we are quite satisfied that he made an honest mistake and that he had no intention to purposely administer a prohibited substance.
(49) In determining penalty we believe that it is appropriate to impose a fine on Mr Lowen.
(50) In support of his submission Mr Oliver has referred us to four previous decisions. We are not sure how those decisions apply other than to show the levels of fines that were imposed in each case. We note that RIU v H involved two breaches involving two dogs one of which won a race. NZGRA v H involved two professional Trainers who admitted one breach where their dog won a race and they were fined a total of $1,600.00. RIU v F involved a professional Trainer who admitted two breaches involving four dogs two of which won their races and another came second. That Trainer used an imported product (Canine EPO) and fines of a total of $5,000.00 were imposed in that case. RIU v N involved a very experienced professional Trainer who admitted two breaches involving two dogs one of which won and the other finished sixth. The product used in that case was Canine EPO and fines totalling $3,000.00 were imposed.
(51) In arriving at penalty we are helped by the Committee in RIU v F. The Committee in that case stated:
“In the present case, if it involved only a single breach, the Committee is of the view that a fine of $2,000.00 would have been appropriate for that breach.”
The difference between that case and Mr Lowen’s case is that in F she imported and used Canine EPO. In our view the actions of Mr Lowen were significantly less than that.
(52) We have taken the aggravating and mitigating factors into account and reflected those in the penalty.
Penalty:
(53) This Committee imposes a fine of $1,450.00 on Mr Lowen.
Disqualification of Greyhounds:
(54) Rule 87.4 of the Rules of New Zealand Greyhound Racing Association Provides:
Any Greyhound which competes in a Race and is found to be the recipient of a prohibited Substance shall be Disqualified from that race.
(55) The requirement is mandatory.
(56) Accordingly the following orders are made:
(i) LEGAL AID, placed 5th, is disqualified from Race 6, the Auckland Vending Stakes, held at the Auckland Greyhound Racing Club’s meeting at Manukau on the 29th of September 2013. As a consequence of the disqualification, the amended results for the race is as follows:
1st No. 2 Premier Osti
2nd No. 7 Tayla Rose
3rd No. 5 Lil’ Miss Krunch
4th No. 3 See Kay Dee
5th No’ 4 Cawbourne Logan
(57) We are advised that LEGAL AID did not earn any stake money on this occasion.
Costs:
(58) There are no orders as to costs.
BJ SCOTT AJ GODSALVE
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 18/11/2013
Publish Date: 18/11/2013
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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decisiondate: 18/11/2013
hearing_title: Non Raceday Inquiry RIU v PG Lowen 31 October 2013 - Decision dated 15 November 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
Non Raceday Inquiry RIU v PG Lowen 31 October 2013
Rules: 87.1 and 87.3
Information Number: A2216
Informant: Bryan James Oliver – Racing Investigator for the Racing Integrity Unit
Respondent: Peter Gregory Lowen
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT CAMBRIDGE
IN THE MATTER of the Rules of New Zealand Greyhound Racing Association
IN THE MATTER of Information No. A2216
BETWEEN BRYAN JAMES OLIVER, Racing Investigator for the Racing Integrity Unit
Informant
AND PETER GREGORY LOWEN
Respondent
Judicial Committee: BJ Scott, Chairman – AJ Godsalve, Committee Member
Present: Mr BJ Oliver, for the Informant - Mr PG Lowen, the Respondent
Date of Hearing: 31 October 2013
Date of Decision: 15 November 2013
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charge:
(1) Information No: A2216 alleges that:
(2) On the 29th September 2013, Peter Gregory Lowen was the Licensed Trainer of the greyhound Legal Aid, which was presented for and raced in race six at a race meeting conducted by the Auckland Greyhound Racing Club at Manukau, when the said greyhound was found to have had administered to it a Prohibited Substance, namely Benzydamine, being an offence under the provisions of Rules 87.1 and 87.3 and punishable pursuant to Rule 89.1 of the New Zealand Greyhound Racing Association Rules.
The Rules:
(3) Rule 87 of the Rules of New Zealand Greyhound Racing Association provide as follows:
87.1 The Owner, or person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substances
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, examinations or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty an offence.
The Penalty Rule:
(4) The penalty Rule is Rule 89.1 which provides:
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 offence; and/or
b. Suspension; and/or
c. Disqualifications; and/or
d. Warning off.
The Plea:
(5) The above charge and Rules were read to Mr Lowen and he advised that he admitted the charge.
Summary of Facts:
(6) Mr Oliver produced a letter dated 21st October 2013 from the General Manager of the Racing Integrity Unit authorising the charge to be laid against Mr Lowen.
(7) Mr Oliver produced the Certificate of Analysis from New Zealand Racing Laboratory Services Limited dated the 8th October 2013 confirming that Benzydamine had been detected in both samples.
(8) Mr Oliver then presented his summary of facts as follows:
(9) Peter Gregory Lowen (the Respondent) is charged with breach of Rule 87.1 and 87.3 of the Rules of the New Zealand Greyhound Racing Association in that he was the Trainer of the greyhound LEGAL AID which returned a positive test to the drug Benzydamine.
(10) The charge proceeds under what is commonly referred to as the Drug Negligence Rule.
(11) The facts of the matter are not in dispute and may be summarised as follows:
(12) The Respondent is a Licensed Trainer under the Rules of the New Zealand Greyhound Association.
(13) On the 29th of September 2013, Mr Lowen was the Trainer and for the time being in charge of the Greyhound LEGAL AID which had been correctly entered and started in Race 6 at a Race Meeting conducted by the Auckland Greyhound Racing Club at Manukau Stadium.
(14) LEGAL AID ran 5th in that race and was selected for a post race swab. The greyhound was swabbed in the presence of Mr Lowen at 4.40pm that day. He has signed the relevant portions of the swab card and did not indicate any irregularities in the swabbing process.
(15) All samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the New Zealand Greyhound Racing Association.
(16) On the 8th of October 2013, the Official Racing Analyst reported in writing that the sample from LEGAL AID had tested positive to Benzydamine.
(17) Benzydamine is a locally acting nonsteriodal anti inflammatory drug with local anaesthetic and analgesic properties for pain relief and anti-inflammatory treatment of inflammatory conditions of the mouth and throat. It is a component in many proprietary cough and sore throat remedies available from any pharmacist. It suppresses coughs and has mild anaesthetic properties.
(18) Benzydamine is a prohibited substance within the meaning of the Rules and its presence in a Raceday sample is , prima facia, a breach of the Rules.
(19) Mr Lowen was interviewed at his property in Tokoroa on Monday 14th October 2013. He freely admitted that he had used the proprietary product “Difflam” in a spray format on his dog LEGAL AID the evening before it raced at the Auckland Greyhound Racing Club meeting on 29 September 2013. He said that he had noticed the dog coughing a lot and looking lethargic. A friend who was at his place that evening produced the product “Difflam” that he had been using for his own cough and Mr Lowen sprayed three puffs down the throat of LEGAL AID.
(20) Next morning the dog still appeared lethargic and Mr Lowen noticed that he had coughed up overnight what appeared to be a piece of sponge. He then rang the Secretary of the Auckland Greyhound Racing Club to scratch the dog. Unfortunately he rang at 8.20am thinking it was 7.29am as daylight saving had been instituted overnight. When told that the scratching would have been a late scratching because of the time Mr Lowen opted to leave the dog in the field.
(21) On arrival at the Meeting the dog was vetted and kennelled. Prior to the race it was vetted again and its temperature taken. The temperature was acceptable and the veterinarian declared the dog fit to start.
(22) The dog ran 5th and Mr Lowen indicated that he was satisfied with the run. The Stipendiary Steward aware of the attempt to scratch the dog, ordered the swab which subsequently was returned as positive.
General Submissions by the Informant:
(23) Whilst Mr Lowen has strictly speaking administered the product which is the source of the prohibited substance to the greyhound, the Informant accepts that he did not knowingly administer the drug Benzydamine with the intention of affecting the performance of the greyhound. For that reason he has been charged with a breach of the Drug Negligence provisions of the Rules, rather than the more serious charge of alleviated the cough the dog had rather than any attempt to affect it performance
(24) Mr Lowen resides in Tokoroa where he trains a small number of greyhounds. He has been a Trainer since August 2008. He has no history of previous breaches of these Rules.
General Submissions b y Mr Lowen:
(26) Mr Lowen acknowledged that the summary of facts was correct. He also acknowledged that it was his fault because he did not know if there was any prohibited substance in the “Difflam” and he realises that with hindsight he should have checked the product first.
Penalty Submissions by Mr Oliver:
(25) As I have already said this matter proceeds on the basis that Mr Lowen has been negligent in using a product which is, strictly speaking, not intended as an animal remedy.
(26) On the basis of the strict liability nature of the Rule and the Court of Appeal decision NZGRA v M, Mr Lowen has presented LEGAL AID to the Race with a prohibited substance in its system.
(27) That is a breach of the Rules.
(28) In his favour Mr Lowen has freely admitted to use of the product and he used it in good faith. He had no knowledge of the substances within the product he used.
(29) The most recent cases involving Prohibited Substances are RIU v H (March 2013) where the respondent sough disqualification instead of a $1600.00 fine sought by the RIU. H was disqualified for three months.
(30) In NZGRA v H and H (August 2011) a fine of $1600.00 was imposed.
(31) In RIU v F (August 2013) a fine of $5000.00 was imposed for four breaches of the Rule using the drug caffeine and M (August 2013) was fined $3000.00 for two charges involving the same drug.
(32) It is therefore the submission of the Informant that a fine of $2000.00 be imposed.
(33) The aggravating factors in this case are the use of a product not intended for animal use on the dog the failure to check the product contents.
(34) In mitigation the respondent readily acknowledges the use of the “Difflam” spray and his attempt to scratch the dog because he thought it was lethargic, not because he knew of the drug within the system. This scratching was not proceeded with because it was late. Mr Lowen forgetting about daylight saving.
(35) It is Mr Lowen’s first drug related offence.
(36) Rule 87.4 provides for the mandatory disqualification of the dog from this race. Fifth place provides no monetary reward however the disqualification provision is mandatory. Accordingly, it is submitted that LEGAL AID be disqualified from Race 6 at Auckland on 29 September 2013
(37) At the conclusion of presentation of his penalty submissions the Committee noted that Mr Oliver had not provided copies of the prior decisions that he had referred to. The Committee explained that without those decisions Mr Lowen did not have a proper opportunity to respond.
(38) The Committee adjourned the Hearing to enable Mr Oliver to provide copies of the decisions to Mr Lowen and to the Committee. Mr Lowen was advised that once he had received the copies of the decisions that he was then entitled to make penalty submissions in writing and that the Committee would then make a decision as to penalty.
Penalty Submissions by Mr Lowen:
(39) In his penalty submissions dated 11th November 2013, Mr Lowen accepted full responsibility for Benzydamine being found in the swab.
(40) He apologised for not checking the throat spray out fully before he used it but he said that he did not any time know that it contained a banned product. He also pointed out that the dog in question ran 5th so there was no monetary gain involved. He further said that he was only looking after the health of his dog and he was not trying to improve its speed or stamina in any way.
(41) Mr Lowen said that none of his dogs had previously returned a positive swab when running or placing and he said that this particular dog LEGAL AID had been swabbed on about eight occasions this season.
(42) Mr Lowen said that he has researched banned substances and he has listed those in his kennel block to make sure that it will not happen again.
(43) Mr Lowen further said that he is an Owner/Trainer with a small team of four dogs and he submitted that the positive swab for his dog was not anywhere near the category of the positive swabs in the decisions referred to by Mr Oliver.
(44) Mr Lowen noted that Mr Oliver said that the positive swab for his dog was at the very low end of the scale and he submitted that a fine of $1,000.00 would be appropriate.
(45) Mr Lowen concluded his submissions by again apologising for what has happened and said that he had definitely learnt his lesson.
Reasons for Penalty:
(46) This Committee is aware of the need to protect the Integrity of Racing. This Integrity is paramount and the existence of drugs in a dog in a Race attacks the very core of that Integrity. This is regardless of how the drugs got there.
(47) The facts presented to us in this matter however present a very unusual situation. Mr Lowen has tried to scratch his dog on the day of the races and he tells us that because of the change to daylight saving he did not realise what the time was and that when he tried to scratch the dog he was told that it would be a late scratching. He would have been fined for that but with the benefit of hindsight he realises that such a fine would have been preferable to any penalty imposed in this case. His reason for scratching his dog was because it was lethargic and not because he thought it had a drug in its system. He did, however, by attempting to scratch his dog draw the attention of the Stipendiary Steward to it and even though his dog only ran fifth it was swabbed and proved positive to Benzydamine.
(48) Mr Lowen, as we are told, is an Owner/Trainer and clearly his actions show a certain naivety on his part. The Informant has accepted that the treatment was carried out with the intention of alleviating the cough the dog had rather than any attempt to affect its performance.
(49) Mr Lowen is charged with negligent administration and when one looks at the facts that is certainly the case. The negligence is tempered with a certain amount of naivety and Mr Lowen has already told us that he has taken steps to ensure that that doesn’t happen again and these are very positive steps on his part.
(47) In mitigation we note Mr Lowen’s admission of the breach and his complete cooperation in the investigation process and his remorse that he has conveyed both verbally and in writing to the Committee.
(48) This however is an issue of strict liability and Mr Lowen used a cough mixture intended for human consumption on his greyhound but we are quite satisfied that he made an honest mistake and that he had no intention to purposely administer a prohibited substance.
(49) In determining penalty we believe that it is appropriate to impose a fine on Mr Lowen.
(50) In support of his submission Mr Oliver has referred us to four previous decisions. We are not sure how those decisions apply other than to show the levels of fines that were imposed in each case. We note that RIU v H involved two breaches involving two dogs one of which won a race. NZGRA v H involved two professional Trainers who admitted one breach where their dog won a race and they were fined a total of $1,600.00. RIU v F involved a professional Trainer who admitted two breaches involving four dogs two of which won their races and another came second. That Trainer used an imported product (Canine EPO) and fines of a total of $5,000.00 were imposed in that case. RIU v N involved a very experienced professional Trainer who admitted two breaches involving two dogs one of which won and the other finished sixth. The product used in that case was Canine EPO and fines totalling $3,000.00 were imposed.
(51) In arriving at penalty we are helped by the Committee in RIU v F. The Committee in that case stated:
“In the present case, if it involved only a single breach, the Committee is of the view that a fine of $2,000.00 would have been appropriate for that breach.”
The difference between that case and Mr Lowen’s case is that in F she imported and used Canine EPO. In our view the actions of Mr Lowen were significantly less than that.
(52) We have taken the aggravating and mitigating factors into account and reflected those in the penalty.
Penalty:
(53) This Committee imposes a fine of $1,450.00 on Mr Lowen.
Disqualification of Greyhounds:
(54) Rule 87.4 of the Rules of New Zealand Greyhound Racing Association Provides:
Any Greyhound which competes in a Race and is found to be the recipient of a prohibited Substance shall be Disqualified from that race.
(55) The requirement is mandatory.
(56) Accordingly the following orders are made:
(i) LEGAL AID, placed 5th, is disqualified from Race 6, the Auckland Vending Stakes, held at the Auckland Greyhound Racing Club’s meeting at Manukau on the 29th of September 2013. As a consequence of the disqualification, the amended results for the race is as follows:
1st No. 2 Premier Osti
2nd No. 7 Tayla Rose
3rd No. 5 Lil’ Miss Krunch
4th No. 3 See Kay Dee
5th No’ 4 Cawbourne Logan
(57) We are advised that LEGAL AID did not earn any stake money on this occasion.
Costs:
(58) There are no orders as to costs.
BJ SCOTT AJ GODSALVE
Chairman Committee Member
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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: