Non Raceday Inquiry – Decision dated 2 July 2021 – Lisa Cole
Auckland Greyhound Racing Club
Manukau Greyhound Standium - Te Irirangi Drive, Manukau, Auckland, 2023
On the papers
Penalty: Trainer Lisa Coles is fined $350 in relation to charge 1 and fined $500 in relation to charge 2
 This is the penalty decision arising from two charges filed against Licenced Greyhound Trainer Mrs Lisa Cole (“the Respondent”) at the meeting conducted by the Auckland Greyhound Club, at Manukau Stadium on 13 June 2021.
Determination on the papers
 With the consent of the parties, the Judicial Committee (“the Committee”) made its determination as to penalty ‘on the papers’ pursuant to paragraph 47.1 of the Common Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal contained in the Seventh Schedule of the Rules of New Zealand Greyhound Racing Association Inc.
 The Committee was provided with and perused relevant documents including Information Numbers A4688 (charge 1), A4689 (charge 2), summary of facts and penalty submissions.
 Charge 1 – Information Number A4688 alleges that in relation to Race 9:
The Respondent presented BIG TIME HARLEY to race 1.8 kg down on in weight from its previous start.
 Charge 2 – Information Number A4689 alleges that in relation to Race 12:
The Respondent presented FEDERAL MORGAN down 1.6 kg in weight from its previous start.
 The relevant Rules are as follows:
 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.
 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.
 Both charges are admitted by the Respondent. The Information’s were signed by the Respondent on 25 June 2021 and endorsed “I do admit the breach of the rule”.
Summary of Facts
 The Respondent Mrs Cole has been charged with and admitted breaching GRNZ Rule 45.11 on two separate occasions at the Auckland GRC’s meeting on the 13 June 2021 by presenting BIGTIME HARLEY (Race 9) and FEDERAL MORGAN (Race 12) down 1.8kgs and 1.6kgs respectively from the weight recorded where it last performed.
 The breaches have been referred to the JCA under GRNZ Rule 62.3 (b) which provides that:
An Offence under these Rules may be classified as a Minor Infringement Offence where:
(a) the Offence is a breach of one of the Rules set out in the Sixth Schedule (which shall be an Additional Rule Appended to these Rules); and
(b) the person who has committed the Offence has not committed more than two (or such higher number as may be determined by the Steward from time to time in the Steward’s discretion) breaches of that Rule in the period 120 days immediately preceding, and including, the date that the Offence has been committed.
 The Respondent is a Licenced Trainer with Greyhound Racing New Zealand. On 13 June 2021, her Greyhounds BIG TIME HARLEY and FEDERAL MORGAN were correctly weighed in at 32.2 Kgs and 31.9 kgs, respectively.
 BIG TIME HARLEY last performed at the Whanganui GRC’s meeting on 4 June 2021 – 10 days prior to this engagement and weighed in at 34kgs – 9 days preceding this meeting.
 FEDERAL MORGAN last performed at the Auckland GRC’s meeting on 30 May 2021 – 15 days prior to this engagement and weighed in at 33.5kgs – 14 days preceding this meeting.
 These breaches would normally be dealt with by means of a Minor Infringement Notice (MIN) however this is the Respondent’s fourth and fifth breach of said Rule in the preceding 120 days. Those being:
- BATTLE CRUISER at Palmerston North – 16 March 2021 – up 1.6kgs – 89 days preceding this meeting.
- NANGAR RIDGE at Christchurch – 6 May 2021 – up 1.8kgs – 38 days preceding this meeting.
- BIG TIME HAUTU at Palmerston North – 10th May 2021 – up 1.7kgs – 34 days preceding this meeting.
REASON FOR DECISION:
As both charges were admitted by the Respondent, they are deemed proved
SUBMISSION FOR PENALTY:
Penalty Submission – Informant
The Informant Mr Wallis provided the following written submissions:
 The RIU can identify one other trainer in recent times that has had four weight offences in a 120-day period. The following cases refer:
- RIU v McInerney – Decision dated 3rd September 2020 – fourth breach – $300.00 fine imposed.
- RIU v McInerney – Decision dated 14th October 2019 – fourth breach – $550.00 fine imposed which was later reduced to $300 on appeal.
 The two breaches whilst dealt with under one bracket need to be treated as individual offences, for that reason the submissions from the RIU are as follows.
 For presenting BIG TIME HARLEY down 1.8kgs in weight and being a fourth breach in 120 days we submit a fine of $300 is appropriate and consistent with previous breaches.
 For presenting FEDERAL MORGAN down in weight 1.6kgs and that no precedent has been set for a fifth breach in 120 days we submit the fine be at the Committee’s discretion
Penalty Submission – Respondent
The Respondent Mrs Cole provided the following written submission.
 March 16th Battle Cruiser’s weight was up 1.6kg. The scales were weighing incorrectly. Another set of scales were used for the second half of the weighing in procedure. This can be verified by Mike Austin who was questioned by many trainers about the weight variances their dogs had shown on Wednesday 17 March 2021. Therefore, this led to the Club having to repair their scales (which took two weeks.). Unfortunately, my daughter inadvertently signed the offence sheet for BATTLE CRUISER not realising there had been an issue with the scales.
 On the 16 March 2021 Gary Frederickson (a current Board Member), weighed his dog (TEKKI JIM) three times as all three weights were different ranging from up 1.5kg to down 1.5kg from his last race day weight.
 Over the 120-day period we have had 1545 starters and 5 weight offences. Converted to percentage of runners to weight gains this is less than 1% (0.32%). You will note that these weight offences didn’t affect their performances.
 In the last five years we have produced over 20,000 starters, and this is the first occasion we have been before the JCA for a weight fine.
 When travelling dogs from across the country you will be aware that a dog’s weight can vary depending on how they have travelled, therefore weight variances can occur at times. One of these weight variances were at Christchurch some 15 hours travel time (one way) from our base. Another two were at Auckland (10 hours from our base).
 With these submissions you will see that this is a rare occurrence from our kennels, and we pride ourselves in presenting all our dogs in peak condition.
REASON FOR PENALTY:
 A breach of r45.11 is generally dealt with by way of MIN and penalties for such breaches are specified with the Sixth Schedule Master GRNZ Rules of Racing (effective 1 August 2018). A first breach of the Rule within the 120-day reset period is liable to a $100 fine; a second breach a $150 fine and a third breach may be dealt with by either referral to the JCA or at the discretion of Stewards impose a further fine, in accordance with r62.3 (b).
 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. The Committee in the exercise of its discretion is entitled to consider a range of relevant determinative factors. Therefore, in this case, the Committee has had due regard for the following issues: (1) the particular facts of each charge; (2) the Respondent’s level of culpability; (3) the Respondent’s personal circumstances; (4) although both charges are substantive and separate, due consideration is given to the ‘totality’ principle when assessing the proportionality of the combined effect of both penalties and (5) for consistency the penalties that have been imposed in like cases.
 In addition, other important issues the Committee is bound to examine when evaluating penalty include the status of the race; the stakes payable and any impact the offending may have on the betting public and/or the integrity of Racing. On that basis the Committee has used these criteria as a decision-making framework in the circumstances of this case.
 On the face of it the Respondent has a poor record under r 45.11 having previously breached the Rule 13 times since 1 June 2018. However, to put that record in context the Respondent maintains a large training operation and races many greyhounds throughout New Zealand. Therefore, given the 120 day reset provisions and the scale of the Respondent’s operation her overall record is treated as a neutral factor, particularly when due consideration is given to the ratio of breaches to the number of greyhounds presented to race. The Committee agrees with the Respondent’s submissions on this point (refer paragraphs 22 and 23).
 However, in terms of the current two charges which represent her fourth and fifth breaches within the 120-day reset period, the Respondent’s record, within that reset period, is deemed to be a relevant factor when assessing penalty.
 In her submission the Respondent highlighted the fact that BATTLE CRUISER’S weight was up 1.6kg (this is the first of the five breaches -which occurred on 16 March 2021 at Palmerston North GRC) the scales were weighing incorrectly and as a result another set of scales were used for the second half of the weighing in procedure. In relation to the BATTLE CRUISER breach the Respondent was issued with a MIN on the day which was admitted and resulted in a $150 fine (MIN number 4534 signed by Ella Cole refers). It is unfortunate that she did not raise this concern with officials on the day as any issue taken with the validity of that MIN should to have been raised on or proximate to the day. Therefore, for the purpose of this hearing the Committee cannot now re-litigate that matter because where a charge is admitted it must be treated as proved. The Respondent raised another concern about weight discrepancies, but based on information provided to the Committee there is no evidence of weighing in problems or problems associated with the accuracy of the scales at the Auckland meeting on 13 June 2021.
Charge 1 (Information Number A4688)
 This charge represents a fourth breach within the reset period. The breach is associated with presenting BIG TIME HARLEY in Race 9 – The Peter Earley Classic Inv 527m with stakemoney of $9000, down 1.8 kg on its previous start. This was a feature race meeting and the race concerned was classified as an ‘Invitation Race’.
 In his submission the Informant has suggested that a fine of $300 would be appropriate and in support of this referred the Committee to the Appeals Tribunal decision McInerny v RIU(November 2019) where a fine of $550 imposed by the presiding Committee was reduced to $300 by the Appeals Tribunal. The Committee accepts that $300 for a fourth breach is now the norm and has adopted this as the starting point.
 The only mitigating factor is that the Respondent admitted the breach at the first available opportunity.
 The Status and Stakemoney payable for the Race are aggravating factors for which the Committee has applied a modest $50 uplift to the starting point.
 After consideration of all the factors the Committee is satisfied that a fine of $350 is appropriate under the circumstances in relation to Charge 1.
Charge 2 (Information number A4689)
 This charge represents a fifth breach within the reset period. The breach is associated with presenting FEDERAL MORGAN in Race 12 – The Amazing Chase C5 527m with stakemoney of $50,000, down 1.6 kg on its previous start. This was a Feature Race meeting and the Race concerned was classified as a ‘Special Race’.
 In his submission the Informant proposed a fine be set at the Committee’s discretion as there is no precedent for a fifth breach of the Rule within the 120-day reset period.
 The mitigating and aggravating factors considered by the Committee are as following:
- The Respondent admitted the breach at the first available opportunity and agreed to have the charges dealt with on the papers, thus reducing the need for a costly hearing.
- The weight variance was only 100 grams more than permitted by the Rule.
- Although the weight variance was notified on the day, the weight variance may have impacted on punters who wagered on FEDERAL MORGAN via the futures fixed odds option.
- The breach occurred at a feature meeting, and the race was classified a ‘Special Race’ with stakemoney of $50,000 which is significant prizemoney in terms of Greyhound Racing.
 Whereas for a fourth breach a $300 starting point is the norm, in keeping with the graduated uplift in fines for first to fourth breaches, for a fifth breach an increased starting point is deemed necessary. This is because although the breach itself is categorised as a Minor Infringement, the penalty for a fifth breach of the Rule within the reset period must be sufficiently meaningful to ensure the Respondent is held to account and it must also operate as a deterrent.
 On that basis the starting point for this fifth breach is set at $400 and for the reasons outlined in the criteria at paragraphs (23) and (24) and for the reasons outlined in the above paragraphs a further $100 is applied to the starting point, to reflect the Status of the Race. Therefore, after consideration of all the factors the Committee is satisfied that a fine of $500 is reasonable, fair and proportionate under the circumstances in relation to charge 2.
 In imposing the fines, the Committee gave due consideration to the aggregate of both fines, to ensure the aggregation of the fines when combined are not out of proportion to the Respondents overall offending. This is in conformity with the ‘totality’ principle.
 In relation to charge 1, the fourth breach of the Rule, Mrs Cole is fined $350.
 In relation to charge 2, the fifth breach of the Rule, Mrs Cole is fines $500.
 Because this matter was dealt with ‘on the papers’ pursuant to para 47.1 of the Common Rules of Practice and Procedure for the Judicial Committee there will be no order as to costs.
Decision Date: 02/07/2021
Publish Date: 08/07/2021