Non Raceday Inquiry – Penalty and Costs Decision dated 19 April 2023 – Alysha Waretini

THE CHARGE:

[1]     The Respondent, Alysha Waretini, a Licensed Kennel Hand, as the person in charge of the Greyhound, OPAWA PIP, who ran in Race 8, at the Christchurch Greyhound Racing Club meeting at Addington Raceway, was charged in that she failed to present the Greyhound free of the Category 2 Prohibited Substances, Methamphetamine and Amphetamine, being an offence under the provisions of Rule 61.1 and punishable pursuant to Rules 63.1 and 61.4 of the Rules of New Zealand Greyhound Racing Association.

[2]     Following a defended hearing on 1 February 2023, the charge was found proved.

[3]     The Trainer of the Greyhound, Lisa Waretini, had earlier admitted a similar charge and was disqualified for a period of 15 months.

[4]     Submissions as to penalty and costs have now been received from Counsel for the parties. These are summarised below.

PENALTY SUBMISSIONS FOR THE APPLICANT:

[5]     The relevant purposes and considerations are helpfully stated in the Appeals Tribunal Decision in RIU v L (13th May 2019):

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/ and those who are to deal with the profession.

A common thread in cases involving serious misconduct is for the regulatory tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member. The tribunal must endeavour to reach a proportionate balance between:

• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors.

The principles of sentencing relevant to this charge can be summarised briefly: –

– Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.

– In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.

– A penalty should also reflect the disapproval of the Committee for the type of offending in question.

 – The need to rehabilitate the offender should be considered.

[6]     Per Rule 63.1 of the Rules, any Person found guilty of an Offence under the Rules shall be liable to:

(a) a fine not exceeding $10,000.00; and/or

(b) suspension; and/or

(c) disqualification; and/or

(d) warning off.

Per Rule 61.4 of the Rules, any Greyhound which competes in a race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.

On 1 September 2014, the Board of Greyhound Racing New Zealand gave approval to penalty standards and categorised various Prohibited Substances. Methamphetamine and Amphetamine are categorised as Category 2 Prohibited Substances. The penalties allow for a starting point of 5 years disqualification but do not differentiate between presentation and administration offences. These Penalty Guidelines have been well publicised within the Greyhound Racing Community. They are intended to encourage more responsibility, diligence and compliance with the Rules by Trainers and those in charge of Greyhounds at race meetings.

The Applicant submits the penalty in this case should be a period of disqualification of not less than 18 months.

[7]     The other Respondent, Lisa Waretini, admitted the breach at a relatively early stage.

From a starting point of 18 months’ disqualification, the Adjudicative Committee afforded Lisa Waretini a one-month discount for her previous good record and a further two months discount in recognition of her admission of the breach. Ultimately, Lisa Waretini was disqualified for 15 months beginning 11 March 2023.

Parity with the starting point adopted for Lisa Waretini will be an important factor.

[8]     The Applicant then referred to a number of cases in the Greyhound Code involving presentation. Obviously, the circumstances of each case varied as did the penalties handed down by the respective Adjudicative Committees. At the end of the day, those cases are of limited relevance as, in each case, it was the Trainer who had been charged.

[9]     The present case is unique, being the first occasion, as far as the Adjudicative Committee is aware, on which the person in charge of the Greyhound has been charged with a presentation breach, in addition to the Trainer.

PENALTY SUBMISSIONS OF THE RESPONDENT

[10]   This is the first time in this code that this Committee has sentenced a second individual in relation to the same one incident of presenting an animal with a prohibited substance in its system (i.e. not administering).

This is the first time that the Committee has sentenced a handler when it has already sentenced the trainer who has the ultimate responsibility for ensuring the animal was drug-free and does not have contact with prohibited substances.

There are therefore no precedents for this sentencing and the Respondent rejects the cases relied on by the RIB for its submission that the penalty in this case should be a disqualification of not less than 18 months.

[11]   It is submitted that the public interest aspect of this case, related principally to animal welfare, was minimal as are the interests of the professional body.

[12]   Likewise, the need to deter. Deterrents are only useful as a sentencing tool if the offence is an intentional act. Presenting an animal with a prohibited substance is not an intentional act – it is a failure to ensure steps are taken so that the animal does not come into contact with the prohibited substance. The sentence already imposed on the Trainer is enough of a general deterrence.

[13]   The Respondent is not the person who had the ultimate responsibility and it follows by way of logic that her responsibility is less and therefore her blameworthiness is less. She must be sentenced less than her co-offender.

[14]   The Committee must sentence on the basis that the level of the substance was only at a detectable level. The detected level was considered relevant in RIU v Turnwald (2021).

[15]   In RIU v L the Appeals Tribunal stated that aggravating factors may include:

“repeated misconduct, intentional/deliberate actions, poor personal record, harm or adverse impact of the offending on the public, members of the profession and others.”

          None of these factors are present.

[16]   A mitigating factor is that this is the Respondent’s first offence of any kind.

[17]   The Greyhound cases referred to by the Applicant are distinguishable.

[18]   Any penalty imposed by the Committee should adequately consider rehabilitation and restorative justice interests as well as punitive interests. There are precedents for cases involving presentation to lead to outcomes shy of disqualification.

[19]   Until this case, the RIB has never laid dual charges in such a case. This significant change of approach should be taken into account by the Committee.

[20]   It is submitted that disqualification is not warranted but, if the Committee will not step back from disqualification, it needs to be at the very bottom of the scale. It is noted that throughout all codes there is a plethora of cases where presenting charges have not resulted in disqualification nor be charged.  

REASONS FOR PENALTY

[21]   The Respondent has been found guilty, along with her mother, the Trainer, Lisa Waretini, of failing to present the Greyhound, OPAWA PIP, to race at the meeting of Christchurch GRC, held at Addington Raceway on 21 April 2022, free of the Prohibited Substance, Methamphetamine.

[22]   The Trainer has earlier admitted the breach and, in a written decision dated 23 February 2023, has been disqualified for a period of 15 months.

[23]   The Adjudicative Committee believes that this is the first occasion on which a person other than the Trainer has been charged with a presentation offence, The (then) Rule 61.1 provided:

“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.”

          The Adjudicative Committee has interpreted that Rule as not preventing charges against both the Trainer and the person in charge of the Greyhound in respect of the same offence.

[24]   The Applicant has submitted that, in the case of this Respondent, the penalty should be a period of disqualification of not less than 18 months.

[25]   The Adjudicative Committee took a starting point of 18 months in the Trainer’s case. From that starting point, the Adjudicative Committee gave a discount of 1 month for her previous good record and a further 2 months for her admission of the breach. There were no aggravating factors. As stated above, the final penalty was a period of disqualification of 15 months.

[26]   The Adjudicative Committee has taken a similar starting point of 18 months, as in the case of the Trainer. This is on the basis that both Respondents share blame for the offence, and there was no evidence at either hearing for the Adjudicative Committee to apportion blame on anything other than an equal basis. This is so, even though primary responsibility rests with the Trainer in such cases.

[27]   There are no aggravating factors. The sole mitigating factor to which the Adjudicative Committee was referred was the Respondent’s previous good record. There can be no discount for admission of the breach.

[28]   To give the Respondent the same discount for a good record as was afforded to the Trainer – that is to say, 1 month – the end result is a disqualification period of 17 months. However, such a calculation of penalty results in the anomalous situation in which the penalty for the co-offender is greater than that for the Trainer, who is the party primarily responsible. Accordingly, the period of disqualification so arrived at is reduced by a further 2 months to be consistent with the penalty imposed on the Trainer.

[29]   The final penalty of 15 months disqualification, so arrived at, reflects the degree of culpability and the circumstances of the Respondent, and is consistent with other penalties. At the same time, the Adjudicative Committee believes it is sufficient to satisfy the objectives of denunciation and general deterrence.

PENALTY

[30]   The Respondent is disqualified for a period of 15 months commencing from the date of this decision.

COSTS

[31]   The Applicant is seeking costs in the amount of $15,847.70 in respect of the proceedings against the Respondent including time spent by Counsel on:

(a)     preparation and attendance at seven teleconferences;

(b)     preparation and attendance at defended hearing;

(c)     preparing written submissions in response to the Respondent’s submissions following the defended hearing; and

(d)     preparing penalty/costs submissions.

[32]   The Applicant seeks 60 per cent of its total costs, being $9,508.62.

[33]   1.  The power for an Adjudicative Committee to make an award of costs is contained in Rule 66.12 and para 29.1 of the Common Rules of Practice and Procedure for the Adjudicative Committee and Appeals Tribunal:

On the determination of an information or the dismissal of an information or its withdrawal, the Adjudicative Committee may order that all or any of the costs and expenses of:

(a)  any party to the hearing;

(d)  the Racing Integrity Board and Adjudicative Committee;

be paid by such person or body as it thinks fit.

2.  Guidance can be obtained from the (then) Judicial Control Authority Practice Note on Costs and Filing Fees (as at 3 September 2015).

3.  That Practice Note states, at para 6, that general principles to be taken into account include the following:

(a)  Decisions whether to award costs, and in what amount, are discretionary

(b)  Under general costs principles an award of costs should only be made:  

(i)   Against a defendant, where the charges have been proved against him or her; noting that there may be cases where, although the charge has been proved it may not be appropriate to award costs against an unsuccessful defendant. Such cases will be rare.  

(c)   In cases where costs are awarded, costs are usually awarded against the unsuccessful party or parties in the proceedings in favour of the party or parties who have succeeded and the authority.

(e)   It is desirable to recover costs incurred as a result of the defendant’s conduct from the defendant rather than passing those costs on to the racing industry as a whole.

(f)   There is a public interest in bringing charges in order to better promote and protect the interests of consumers and the integrity of the racing industry.

(g)  The amount of any costs awarded must be reasonable in all the circumstances of the case.

(h)   The amount of costs will usually be a proportion of the actual costs incurred by the party claiming costs and/or the authority.

(i)   In general, where costs are awarded to a party a good rule of thumb is an award of 60% of the actual costs reasonably incurred by that party, recognising that costs are discretionary and there will be a range of factors which might persuade an Adjudicative Committee or the Appeals Tribunal to move up or down from that starting point.

(j)   In general, where costs are awarded to the Committee a good rule of thumb is an award of 100% of the actual costs reasonably incurred by the Committee, recognising that because costs are discretionary there may be a range of factors which might persuade an Adjudicative Committee or the Appeals Tribunal to move down from that starting point.

4.  Paragraph 9 states:

A defendant who seeks to rely on a lack of financial means in opposing an award of costs must provide evidence in a form satisfactory to the Adjudicative Committee or the Appeals Tribunal containing information on the sources and amount of the defendant’s income, assets, liabilities and outgoings.

[34]   The Applicant is seeking costs in the amount of $15,847.70 in respect of the proceedings against the Respondent.

[35]   The Applicant seeks 60 per cent of its total costs, being $9,508.62.

[36]   Counsel for the Respondent referred to the Practice Note and highlighted that decisions to award costs, whatever amount, are discretionary, and that the amount must be reasonable in all the circumstances of the case.

[37]   Counsel for the Respondent referred to the Decision of the Appeals Tribunal in RIB v Weir (2022), an Appeal against an award of costs, in which the Tribunal noted with concern that the Committee gave a bald order for costs with “no breakdown or explanation for the costs award arrived at”. In this case, the Applicant has not provided a breakdown of the costs incurred resulting in insufficient detail for an accurate assessment of the costs. Without this information, it was submitted, any decision of this Committee would be “blind” to the true nature of the costs incurred and it would be wrong to award costs. This submission is accepted in part by the Committee and is reflected in the ultimate decision as to costs.

[38]     The prosecution of breaches of the Rules is a fundamental function of the RIB. When prosecution of a breach succeeds, and the Respondent has been proved to have breached the Rules, the Adjudicative Committee has the task of deciding the Code’s response in terms of penalty. Since the RIB may have expended considerable resources in proving the breach, it is reasonable to recoup some or all of that expenditure. A hearing is an expensive process for both parties. The Respondent has, of course, had to bear the expenses of legal fees associated with her defence. The RIB incurs, not only prosecution expenses but also Adjudicative Committee expenses.

[39]     From the outset, the Respondent maintained a denial of the charge throughout seven teleconferences and a half-day defended hearing. It transpired that the defence was somewhat dubious, based on allegations of abuse of process which the Adjudicative Committee rejected. The only recognised defence to the charge is one of total absence of fault, a defence which was expressly not argued at the hearing.

[40]     The financial circumstances of a party or ability to pay, as a general rule, should be taken into account in fixing a costs award. This Adjudicative Committee has no information concerning the Respondent’s financial position. The submissions on her behalf provided no such information.

[41]     The Adjudicative Committee has to make a decision as to an award of costs in this case, in the absence of a detailed breakdown of the costs of the Applicant and any information as to the financial circumstances of the Respondent.

[42]     The Adjudicative Committee acknowledges that, as a consequence of the disqualification imposed on the Respondent, she has been deprived of the opportunity to earn any income from the industry in which she has been employed for many years. It follows, therefore, that her financial position is unlikely to be strong. The Adjudicative Committee is required to have regard to this.

[43]     Having regard to the two principal factors – the absence of a detailed breakdown of the costs claimed by the Applicant and the absence of any details of the financial position of the Respondent – the Adjudicative Committee makes the following orders as to costs:

RIB legal costs (based on 40% of the amount claimed): $6,340.00

Contribution to costs of Adjudicative Committee: $750.00

Total: $7,090.00

[44]     The Respondent is ordered to pay costs in the sum of $7,090.00.