Non Raceday Inquiry – Decision dated 17 September 2021 – Lisa Cole

EVIDENCE:

Introduction

[1] This is the penalty decision arising from two admitted Charges filed against Licenced Greyhound Trainer, Mrs Lisa Cole (“the Respondent”). The first Charge arises from Race 8 at the Greyhound meeting conducted by the Wanganui Greyhound Club on 3 September 2021. The second Charge arises from Race 8 at the meeting conducted by the Palmerston North Greyhound Club on 6 September 2021.

Determination on the papers

[2] With the consent of the parties, the Adjudicative Committee (“the Committee”) has made its determination as to penalty ‘on the papers’ pursuant to clause 21.1 of the Common Rules of Practice and Procedure contained in the Seventh Schedule of the Rules of New Zealand Greyhound Racing Association Inc.

[3] The Committee was provided with and perused relevant documents including Information numbers A11028 (Charge 1), A11029 (Charge 2), the summary of facts and penalty submissions.

The Charges

[4] The Charges are as follows:

Charge 1 – Information Number A11028 alleges that in relation to Race 8 at the Wanganui GRC on 3 September:

The Respondent presented BIG TIME HARLEY to race 1.7 kg up in weight from its previous start on 12 August 2021.

Charge 2 – Information Number A11029 alleges that in relation to Race 8 at the Palmerston North GRC on 6 September 2021:

The Respondent presented BIG TIME BANGER to race 2 kg up in weight from its previous start on 13 August 2021.

[5] The originating Information’s were amended on 16 September 2021 at the request of both Applicants to reflect the fact that the two Charges represent the kennels fourth and fifth breach of the Rule, not the fifth and sixth breach as was initially indicated.

The Rules

The relevant Rules are as follows:

[6] Rule 45.11 provides that – Where the weight of a Greyhound recorded at a Meeting varies by more than one and a half (1.5) kilograms from the weight recorded in a Race in which it last performed that Greyhound shall be permitted to compete in the current Race, but the Trainer of the Greyhound shall be guilty of an Offence unless permission has been granted under Rule 45.12.

[7] Rule 45.12 provides that – Permission shall be granted by Stewards for a Greyhound recording a weight variance of more than one and a half (1.5) kilograms to start in a Race provided that such Greyhound has not performed in any Race during the preceding 28 days, and no fine shall be imposed. For the avoidance of doubt, the day of the dog’s last start shall be counted as a day for the purposes of the 28 days.

The Plea

[8] Both Charges are admitted by the Respondent.

[9] Information (A11028) was signed by Ella Cole on 3 September 2021 and endorsed “I do admit the breach of the Rule”.

[10] Information (A11029) was signed by Ella Cole on 6 September 2021 and endorsed “I do admit the breach of the Rule”.

Summary of Facts

[11] The Respondent, Mrs Lisa Cole, is Licensed to Train under the Rules of Greyhound Racing New Zealand (GRNZ).

[12] Prior to the start of each Greyhound meeting Stewards are required to, pursuant with Rule 41, ensure that the weighing instrument i.e., scales, are checked for accuracy using the “check” weights supplied by the Club.

[13] The check weights are 20 kilograms and either 10 kilograms or 5 kilograms with the general process in the Central Districts being a check of the scales with all three available weights. If Stewards are not satisfied with the results of the inspection, they will allow for no weights to be recorded for any Greyhound competing at the meeting and notify the Club so they can take the necessary steps to remedy the matter.

[14] On each of the race days relating to Information’s A11028 and A11029 the Stewards were satisfied that the scales were accurate.

[15] With regards to Information A11028, on the 3 September 2021 the Respondent had BIG TIME HARLEY engaged in Race 8, the Lance Green Accountant C1/2, at the Wanganui Greyhound Racing Club. BIG TIME HARLEY was weighed twice with both recorded weights being the same, i.e., 33.6 kg which represents a 1.7 kg decrease on his previous race weight of 31.9 kg on 12 August 2021.

[16] With regards to Information A11029, on 6 September 2021 the Respondent had BIG TIME BANGER engaged in Race 8, the PNGRC Sectional Times @pnggreyhounds C1. BIG TIME BANGER was weighed twice with both recorded weights being the same, i.e., 33.3 kg which represents a 2 kg increase on his previous race weight of 31.3 kg on 13 August 2021.

[17] On both occasions Ms Ella Cole was representing the Respondent on each of the racedays. She readily admitted both breaches.

[18] The first Charge (Information A11028) is the Responden’ts fourth breach of Rule 45.11 within the past 120 days.

• 13 June 2021 – Auckland GRC – FEDERAL MORGAN – (third offence, at the time, within the 120-day reset period and referred to JCA) – fined $500 (83 days).

• 13 June 2021 – Auckland GRC – BIG TIME HARLEY – (second offence, at the time, within the 120-day reset period and referred to JCA) – fined $350 (83 days).

• 10 May 2021 – Palmerston North GRC – BIG TIME HAUTU – (first offence, at the time, within the 120-day reset period) minor infringement $150 (117 days).

[19] The second Charge (Information A11029) is the Respondent’s fifth breach of the Rule, and on that basis the previous breaches relevant to Charge 2 are as follows:

• 3 September 2021- Wanganui GRC- BIG TIME HARLEY- (fourth offence, at the time within 120 days reset period and referred to the Adjudicative Committee. (3 days)

• 13 June 2021 – Auckland GRC – FEDERAL MORGAN – (third offence within the 120-day reset period and referred to JCA) – fined $500 (85 days).

• 13 June 2021 – Auckland GRC – BIG TIME HARLEY – (second offence within the 120-day reset period and referred to JCA) – fined $350 (85 days).

• 10 May 2021 – Palmerston North GRC – BIG TIME HAUTU – (first offence within the 120-day reset period) Minor Infringement $150 (119 days).

Penalty Submission – The Applicants

In terms of penalty the Applicants Mr Austin and Mr Coppins submitted:

[20] The Racing public rely on dogs racing at their optimum weights and get frustrated when Greyhounds they may follow to bet on are presented to race outside their normal race weights. This causes the Industry to appear unprofessional at times.

[21] Both Charges have been admitted by the Respondent.

[22] A breach of Rule 45.11 is generally dealt with by way of a Minor Infringement Notice for the first three breaches. On the fourth and subsequent breaches an Information is completed and submitted to the Adjudication Committee for consideration.

[23] Breach one receives a Minor Infringement Notice and a fine of $100. Breach two within 120 days receives a Minor Infringement and a fine of $150, while breach three receives a Minor Infringement and a fine of $150.

[24] There is only one precedent for a fifth offence within the 120-day reset period, that being FEDERAL MORGAN (L Cole) on 13 June 2021, where the proposed fine was “set at the Committee’s discretion” with a starting point of $400 for a fifth offence and increased by a further $100 to “reflect the Status of the Race”. (RIU v L Cole, 13 June 2021, fined $500).

[25] With only one precedent the RIB leaves the decision as to penalty with respect to both Charges to the Adjudicating Committee.

Penalty Submission – Respondent

The Respondent Mrs Cole provided the following written submission.

Information 11028 (BIG TIME HARLEY)

[26] His weight was down when he travelled approximately 15 hours Christchurch for a major race (premier meeting), in which he is a noted ‘bad’ traveller; hence why he was fined last time when he did an 8-hour trip to Auckland for a premier meeting. His weight on this occasion was his perfect race for racing as he did not have to travel anywhere; winning the feature distance race by a big margin at Wanganui, when his weight was up to his normal weight due to no travel. It was well documented by the racing commentator prior to the race, to let punters know that his weight was the punters weight.

General submission
[27] We know due to lockdown (not being able to access our usual food supplies for the dogs) and not being able to race, trial or work our dogs to their full potential that receiving these fines after having no income for 3 weeks lacks empathy and logic towards trainers’ wellbeing over such a stressful time anyway. We noted in the first three race meetings back over the whole country that there was a large proportion of weight variances compared to what you would normally see.

Reasons for Penalty

[28] A breach of r45.11 is generally dealt with by way of Minor Offence Notice (MIN) and penalties for such breaches are specified with the Sixth Schedule Master GRNZ Rules of Racing (effective 1 August 2018).

[29] Whereas the penalty for a first and second breach is prescribed within the MIN schedule, the penalty for a third breach (or more) is evaluated on a fact dependant basis considering a range of relevant factors.

[30] Relevant factors considered most relevant include:

a. the severity of the breach;

b. the Respondent’s level of culpability including the Respondent’s record of previous of breaches;

c. the Respondent’s personal circumstances;

d. aggravating and mitigating factors;

e. for consistency, the penalties that have been imposed in like cases; and

f. any impact the offending may have on the betting public and/or the integrity of Racing.

[31] The Committee has used these factors as its decision-making guide when evaluating the penalty to be imposed in relation to the two Charges.

Precedent cases

[32] A $300 fine is deemed to be appropriate starting point for a fourth breach of the Rule. This was reinforced in the Appeal decision McInerney v RIU – 19 November 2019, where the Chair of the Appeals Tribunal Mr R G McKenzie stated at paragraphs 26 to 28 inclusive:

“The Judicial Committee in its decision on 25 May 2019 stated that a penalty consistent with penalties for a third or subsequent breach of a $300 fine was appropriate. We agree…….

……. The Tribunal notes that the Racing Integrity Unit Stewards submitted for a fine of $250 -$300 before the Judicial Committee and, further, Mr Quirk in his submissions on the appeal submitted for a fine “in the range of” $250-$300”. The Tribunal is satisfied that the penalty imposed by the Judicial Committee of a fine of $550 is manifestly excessive”.

[33] On that basis the starting point for this fourth breach is set at $300 with appropriate allowances made for aggravating and mitigating factors.

[34] The Committee is also familiar with the recent decision of RIU v K Lincoln-Papuni (August 2021), a case which related to two similar Charges (i.e., fourth and fifth breach of Rule 45.11). In that case the Committee had due regard for the aggregated result of two fines that were imposed to ensure the aggregation of the fines were not out of proportion to the Respondent’s overall offending. The Committee applied a $50 discount to the $400 starting point in relation to the second Charge.

Charge 1 (Information A11028)

[35] This Charge is the Respondent’s fourth Charge within the 120-day reset period.

[36] The Respondent manages a large training operation and at any one time has many dogs in work and ready to race. Overall, the Kennel’s ratio of breaches to the number of dogs presented to race is low. However, given that the Respondent does have a large operation it has the added responsibility to constantly monitor its processes and systems, as far is possible, to ensure breaches of this nature are minimised.

[37] The Committee has noted the Respondent’s submission concerning the circumstances relating to BIG TIME HARLEYS racing weight. In particular the impact that the long trips to Auckland and Christchurch have had on BIG TIME HARLEY who is said to be a bad traveller. Also noted and taken into consideration are the impacts that COVD-19 have had on training; racing; the (dog) food supply chain and Trainers earning capacity. The Committee accepts these circumstances explain (to some extent), the reason for BIG TIME HARLEYS weight variance.

[38] The Committee also notes that BIG TIME HARLEY did win the race in question, thus earning the winners share of the $5000 stake.

[39] The Applicant (Mr Coppins) suggested a $300 fine as the starting point.

[40] The Respondent has admitted this breach at the first available opportunity.

[41] There are no particular aggravating factors.

[42] After consideration of all the factors the Committee is satisfied that a fine of $300 is appropriate under the circumstances in relation to Charge 1.

Charge 2 (Information number A11029)

[43] This Charge represents the Respondent’s fifth breach within the reset period.

[44] The comments made by the Committee (above) in relation to Information A11028 are equally relevant to this Charge. And in relation to the Respondent’s submissions the Committee accepts that as a direct consequence of COVID-19 there are mitigating circumstances to be considered when evaluating the penalty to be imposed (refer paragraph 27).

[45] The Respondent not only admitted the breach at the first available opportunity, but she also agreed to have the Charges dealt with on the papers, thus reducing the need for a costly hearing.

[46] Whereas for a fourth breach a $300 fine is the accepted starting point; a fifth breach requires an increased starting point to reflect the fact that it is a repeated breach that raises the Respondent’s level of culpability. An increased starting point is also deemed necessary because although the breach itself is categorised as a Minor Infringement, the penalty for a fifth breach must be sufficiently meaningful to ensure the Respondent is held to account and it must also operate as a deterrent.

[47] The Applicant (Mr Austin) proposed that this breach be dealt with by way of a fine set at the Committee’s discretion. In his submission the Applicant referred the Committee to the recent RIU v L Cole (June 2021) decision which resulted in a $500 fine. The circumstances of Cole are different to this matter due to the status of the Race (i.e., the Charge arose from the running of The Amazing Chase C5 527m with stakemoney of $50,000). It was for that reason a $100 uplift was applied to the starting point of $400.

[48] Accordingly, the starting point for this fifth breach is set at $400.

[49] In the recent decision of RIU v K Lincoln-Papuni (August 2021), a case which related to two similar Charges (i.e., Rule 45.11), the Committee had due regard to the aggregated result of both fines and as consequence, to ensure the aggregation of the fines when combined were not out of proportion to the Respondent’s overall offending the Committee applied a $50 discount to the $400 starting point.

[50] As a result after consideration of the aggravating and mitigating factors, and with regards to the aggregation of both fines a $50 discounted is applied to the $400 starting point.

[51] The Committee is satisfied that a fine of $350 is reasonable and fair penalty under the circumstances of Charge 2.

Penalty

[52] As has been highlighted in this decision, in imposing the fines, the Committee has ensured that the aggregation of both fines when combined are not out of proportion to the Respondent’s overall offending. This is in conformity with the ‘totality’ principle.

[53] In relation to Charge 1 (Information A11028), the fourth breach of the Rule, Mrs Cole is fined $300.

[54] In relation to Charge 2 (Information 11029), the fifth breach of the Rule, Mrs Cole is fines $350.

Costs

[55] Because this matter was dealt with ‘on the papers’ pursuant to clause 21.1 of the Common Rules of Practice and Procedure there will be no order as to costs.

G R Jones
(Chair)