Non Raceday Inquiry – Decision dated 12 August 2021 – Francis McPhee

DECISION OF THE ADJUDICATIVE COMMITTEE

[1] Information A16152 alleges that on 11 July 2021 at a race meeting conducted by the Auckland Greyhound Racing Club at Manukau, Licensed Handler, Francis McPhee, “following Race 1 had trouble controlling his Greyhound VEGAS CHOPS while attempting to walk back to the dais resulting in him raising his hand and striking the Greyhound across the hindquarters.”

[2] This is an alleged breach of r 62.1(o) of the GRNZ Rules of Racing.

[3] Mr McPhee has admitted the breach and the matter has been heard on the papers.

[4] Rule 62.1 provides: “Any person (including an Official) commits an offence if he/she: (o) has, in relation to a Greyhound or Greyhound racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct”.

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

(a) a fine not exceeding $10,000 … ; and/or

(b) Suspension; and/or

(c) Disqualification; and/or

(d) Warning Off.”

[6] The agreed Summary of Facts states that Mr McPhee is a Licensed Handler under the Rules of GRNZ. He has held a Handler’s Licence since 2008.

[7] On 11 July 2021 Mr McPhee was the Handler of the Greyhound VEGAS CHOPS in Race 1 at the Auckland Greyhound Racing Club’s meeting at Manukau.

[8] VEGAS CHOPS was placed first in the race and upon attempting to walk back to the winner’s dais the Greyhound displayed poor manners, and this resulted in Mr McPhee raising his hand and striking the Greyhound across the hindquarters. This footage was broadcast across Trackside TV.

[9] The Stewards interviewed Mr McPhee regarding his actions out on the track.

[10] Mr McPhee admitted that he did strike the dog but that it was on the spur of the moment, and it was just to get the dog’s attention.

Informant’s penalty submissions

[11] The Informant summarised the four principles of sentencing as:

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 Adjudicative Committee for the type of offending in question.

The need to rehabilitate the offender should be considered.

[12] There have been two similar breaches of this nature when looking at previous cases within Greyhound Racing in NZ:

RIU v Flipp 2 September 2014 — $300

RIU v Taylor 15 Jan 2015 — $250

[13] Mitigating factors are that the Respondent has admitted the breach at the first opportunity, has been fully co-operative throughout the process, and was very remorseful when admitting to the incident.

[14] This is the first charge under this Rule against Mr McPhee.

[15] An aggravating feature was that the incident was televised on Trackside television, widening the audience.

[16] Welfare of Greyhounds was submitted to be a priority for the Greyhound Racing Code and in January 2014 its Governing Body issued a Code of Welfare issued under the Animal Welfare Act 1999. The Code applies to all persons licensed by the NZGRA and applies to all Greyhounds kept by such persons. The purpose of the Code is expressed in these words:

Owners and persons in charge of racing greyhounds have a responsibility to understand and meet the welfare needs of their greyhounds. The purpose of this Code is to encourage all those responsible for racing greyhounds to adopt the highest standards of husbandry, care, and handling.

[17] This Code has clearly been breached in this circumstance.

[18] Numerous decisions of Judicial Committees and the Appeals Tribunal have confirmed that penalties imposed for breaches of Rules of Racing must give proper emphasis to accountability and denunciation which in turn operates as a deterrent to others from breaching rules in a similar way.

[19] This type of incident cannot be tolerated and places the Greyhound Industry under more pressure surrounding the welfare of Greyhounds. Incidents of this nature do not endear the general public to see the Industry in a professional and positive light. Any form of physical abuse of a Greyhound is likely to damage the integrity of Greyhound Racing and there is a need to have regard to this in arriving at an appropriate penalty.

[20] The RIB believe that this breach can be dealt with by way of a fine that reflects the seriousness of the incident. In coming to this conclusion, the RIB believes a fine on this occasion will serve to deter Mr McPhee from similar behaviour in the future as well as deter others from physically abusing their animals.

[21] The RIB, taking into account all mitigating and aggravating factors presented with this incident, believe a starting point of $800 is appropriate in this circumstance. We submit this can be mitigated down to $500 with Mr McPhee’s clean record and his showing of genuine remorse.

Respondent’s submissions

[22] Mr McPhee said that his recorded statement to Mike Austin “says most everything I wish to say.” He believed an open hand slap was necessary to distract VEGAS CHOPS from attacking BIGTIME FENDI. VEGAS CHOPS had been trying to attack BIGTIME FENDI as soon as the lure stopped, and he said, “it got worse as we started to walk away from the lure towards the dais.”

[23] Mr McPhee said he realised this was “not a very good choice of behaviour from me or VEGAS CHOPS.” He apologised and said it would never happen again.

[24] Mr McPhee commented that others that had been charged under the same Rule and had received fines of $300 for kicking their Greyhound, and $250 for punching their Greyhound.

[25] As he had admitted to his behaviour and wished to say sorry to all concerned, he believed a $100 fine was appropriate.

Penalty

[26] Mr McPhee has given an open hand slap to VEGAS CHOPS in order to control the dog when it was misbehaving after winning the race in which it had just competed and was being led to the dais.

[27] Animal welfare is clearly an issue. In addition, the incident was clear to those viewing the meeting on Trackside. Both these matters point to the need for the penalty to address the issue of the integrity of Greyhound Racing, at a time when the Industry is under the spotlight.

[28] Mr Austin does not indicate in his submission why an $800 starting point is appropriate, nor why a fine considerably above those in the two cases cited should be imposed in this case. There is no starting point in either of these cases and the penalty in each is within the range the RIU submitted was appropriate. The Committee can make the assumption it is because of the integrity issue, just addressed, but equally there is a need for consistency in the imposition of penalties for like breaches.

[29] The cases to which the parties refer have fines at the level of $250 and $300. One involves the kicking of a dog that would not enter the starting boxes at an unofficial trial, and the other a strike to the head when walking the dog to the start as it was reacting to having a bitch that was in season close to it. Both these decisions make reference to the Code of Welfare (2014) issued under the Animal Welfare Act 1999.

[30] Any physical mistreatment of a Greyhound is clearly in breach of the Code of Welfare and, in the present case the open hand slap across the dog’s hindquarters is also a breach of the Rules. While the Respondent’s actions are not as egregious as the kick or the blow to the head, animal welfare considerations receive significantly greater emphasis today both by way of policy implementation and penalty where there is a breach of the Rules. The recent Rule changes and increased penalties for whip breaches in both horse racing Codes is evidence of this, were it needed.

[31] Mr McPhee has allowed his frustration to get the better of him when VEGAS CHOPS would not do his bidding. This was immediately after the race and was in full view of the Trackside cameras. He has no previous breach, is clearly remorseful, and has apologised for his actions. He has assured the Committee there will not be a repeat.

[32] Any form of physical abuse of a Greyhound in any degree is likely to damage the public’s perception of Greyhound Racing. Thus, the penalty needs to hold the Respondent accountable, denounce his actions, uphold the integrity of the Industry, and reflect the interests of animal welfare. A fine at the level submitted by the Respondent would not satisfy these principles. Equally, the Informant’s submission is excessive for the same reasons.

[33] The penalty is a fine of $350.

Costs

[34] The matter has been heard on the papers. There is no award of costs in favour of the RIU or the JCA.

Dated at Dunedin this 12th day of August 2021.

Geoff Hall, Chairman