Non Raceday Inquiry – Decision dated 26 August 2021 – Kelly Lincoln-Papuni

DECISION OF ADJUDICATIVE COMMITTEE DATED 26 AUGUST 2021

EVIDENCE:

Introduction

[1] This is the penalty decision arising from Information Numbers A11024 and A11025 filed against Licenced Greyhound Trainer Kelly Lincoln-Papuni (hereafter “the Respondent”) in relation to two separate breaches of Rule 45.11, which relates to weight variances. The charges were filed by Senior Stipendiary Steward Mr M Austin (hereafter “the Applicant”).

The particulars of the two charges are set out in paragraph 4.

Determination on the papers

[2] With the consent of the parties, the Adjudicative Committee (“the Committee”) made its determination as to penalty ‘on the papers’ pursuant to paragraph 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 (GRNZ).

[3] The two breaches occurred on different dates at different meetings and respectively represent the fourth and fifth breach of the Rule by the Respondent within the 120-day reset period. For expediency the two charges have been heard together.

[4] The Committee was provided with and perused relevant documents including Information Numbers A11024 and A11025, summary of facts and penalty submissions.

THE CHARGES:

[5] Information Number 11024 alleges:

THAT on 6 August 2021 at a race meeting conducted by Wanganui Greyhound Racing Club in Race 10, K Lincoln-Papuni presented GOTHA MURPHY with a 1.6kg increase in weight from its previous start on 16 July 2021. This is the kennel’s 4th offence within the previous 120 days. An alleged breach of Rule 45.11 of the New Zealand Greyhound Racing Association Rules.

[6] Information Number A11025 alleges:

THAT on 11 August 2021 at a race meeting conducted by Wanganui Greyhound Racing Club in Race 2, K Lincoln-Papuni presented OSCAR’S REALITY 1.8kg above its previous race weight on 14 July 2021 with being the kennel’s 5th offence within the previous 120 days. An alleged breach of Rule 45.11 of the New Zealand Greyhound Racing Association Rules.

[7] Because these charges are the kennel’s fourth and fifth breaches of the Rule within the 120-day reset period the two Information’s were filed and referred to an Adjudicative Committee by Stewards pursuant Rule 62.3 (a) and (b) for penalties to be considered and imposed.

THE RULES:

[8] The relevant Rules are as follows:

[9] 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.

[10] 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.

[11] Rule 62.3 (a) and (b) provide 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 PLEA AND REASON FOR DECISION:

[12] Both charges are admitted by the Respondent and the Information’s endorsed accordingly.

[13] As the charge are admitted they are deemed to be proved.

SUMMARY OF FACTS:

Charge 1 – Information Number 11024

[14] On 6 August 2021 at a race meeting conducted by Wanganui Greyhound Racing Club, the Respondent presented GOTHA MURPHY to race in Race 10 the Book Your Function @ Hatrick C4.

[15] GOTHA MURPHY was weighed twice with both recorded weights being the same, i.e., 34.5 kg which represents a 1.6 kg increase in weight from its previous start on 16 July 2021.

[16] This is the kennel’s 4th breach of Rule 45.11 within the previous 120 days. The previous breaches within the 120-reset period are as follows:

12 July 2021 THRILLING BRAX down 2.4 kg – fined $100 (first breach)

12 July 2021 THRILLING OTIS down 1.9 kg – fined $150 (second breach)

04 August ADOBE SPINNER up 1.6 kg – fined $150 (third breach)

Charge 2 – Information Number 11025

[17] On 11 August 2021 at a race meeting conducted by Wanganui Greyhound Racing Club, the Respondent presented OSCARS REALITY to race in Race 2 the Pearson Farm Co.

[18] OSCARS REALITY was weighed twice with both recorded weights being the same, i.e., 32.6 kg which represents a 1.8 kg increase in weight from its previous start on 14 July 2021.

[19] When spoken to by Stewards concerning both matters, the Respondent admitted breaching the Rule and signed both Information’s accordingly.

[20] This charge is the kennel’s fifth breach of Rule 45.11 within the previous 120 days. The fourth breach is set out in the particulars of charge 1 (Information Number 11024).

SUBMISSIONS FOR PENALTY:

Penalty Submission – Informant

The Applicant Mr Austin provided the following written submission:

[21] 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.

[22] The Respondent has admitted both charges.

[23] The facts with regards to both charges are not disputed.

[24] A breach of Rule 45.11 is generally dealt with by Stewards by way of a Minor Infringement Notice (MIN) for the first three breaches, with a fourth breach resulting in an Information being filed and submitted to the Adjudicative Committee for consideration as to penalty.

[25] The following precedent cases are submitted for the consideration of the Committee:

• RIU v J McInerney, 3 September 2020, fourth breach, fined $300.
• RIU v J McInerney, 14 October 2020, fourth breach, fined $550, reduced to $300 on Appeal.
• RIU v L Cole 2 July 2021, fourth breach, fined $350.
• RIU v Agent/Williams 11 July 2021, fourth breach fined $300.
• RIU v L Cole 13 June 2021, fifth breach fined $500.

Conclusion

Charge 1

[26] The RIB has historically suggested a starting level of $300 for the fourth breach of the Rule, accordingly it is submitted a $300 fine is the suggested starting point for this charge.

Charge 2

[27] The RIB has not yet imposed a penalty for a fifth offence under Rule 45.11 (as the L Cole decision referred to above was imposed by the JCA – not an Adjudicative Committee).

Penalty submissions – Respondent

The Respondent Mrs Lincoln-Papuni provided the following written submission:

[28] THRILLING BRAX and THRILLING OTIS were intentional decreases, and both ran really good races, one running his personal best to date.

[29] After the decrease in these weights I returned to using Drontal Plus worming tablets after using a couple other worming treatments (that didn’t work).

[30] The dogs all had a big clean out and gained weight even after cutting back their food.

[31] All these dogs also ran good races, and I don’t think it affected their performances in any way.

[32] OSCARS REALITY was up 1.8 kg after resuming from a 28-day stand down from a fall. My understanding was that he had seen out his 28-days and I wouldn’t be penalised.

[33] I wasn’t aware that the Rules are different in the 28-day stand down to weights. This dog also ran a very good placing.

REASON FOR PENALTY:

[34] A breach of Rule 45.11 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 Adjudication or at the discretion of Stewards impose a further fine, in accordance with r62.3 (b).

[35] 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:

• the particular facts of each charge;
• the Respondent’s level of culpability;
• the Respondent’s personal circumstances;
• 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
• for consistency the penalties that have been imposed in like cases.

[36] The Committee has used the above criteria as its decision-making framework to determine appropriate penalties for each charge.

[37] Up until this sequence of offending the Respondent has maintained an excellent record in relation to this Rule with only one prior recorded breach (that being almost three years ago in November 2018). But since 12 July 2021, inclusive of these charges, the Respondent has breached the Rule on five occasions.

[38] This therefore raises the obvious question, given the Respondent’s previous good record – ‘what has caused these repeat breaches to occur in such a short time span’? An explanation, in part, may be that the Respondent had been using different worming tablets and this may have impacted on the dog’s weight. The Respondent has now returned to using Drontal Plus after breaches 1 and 2 (refer paragraph 24) and it remains to be seen whether there are ongoing issues with weight variances.

[39] In her penalty submission the Respondent advised that the weight variances with regards to THRILLING BRAX and THRILLING OTIS, (both on 12 July 2021) were intentional decreases.

Charge 1 (Information Number A11024)

[40] This charge represents a fourth breach within the reset period.

[41] In his submission the Applicant 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 Applicant also submitted that other recent cases involving a fourth breach have resulted in fines between $300 and $350.

[42] The Committee accepts that $300 for a fourth breach is now the norm and has adopted this as the starting point.

[43] The mitigating factors are that the Respondent admitted the breach at the first available opportunity and agreed to having the charge(s) dealt with on the papers.

[44] There are no aggravating factors associated with this breach.

[45] Therefore, 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 A11025)

[46] This charge represents a fifth breach within the reset period.

[47] 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 slightly 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). Due to this factor a $100 uplift was applied to the starting point of $400.

[48] The Committee considered the penalty submissions of both the Applicant and the Respondent.

[49] 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 ‘in person’ hearing.
• The weight variance was 1.8 kg as opposed to the 1.5 kg permitted by the Rule.
• The weight variance may have impacted on punters’ selection of OSCARS REALITY, albeit it did finish in 3rd place, but due to the field size it was a non-dividend bearing placing.
• This is the Respondent’s fifth breach of the Rule within a very short time frame (4 weeks).

[50] 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.

[51] On that basis the starting point for this fifth breach is set at $400. This is consistent with the (June 2021) RIU v Cole decision. It also gives effect to the decision-making criteria in paragraph 27. In that regard the Committee has due consideration to the aggregated result of both fines. As a consequence, to ensure the aggregation of the fines when combined are not out of proportion to the Respondents overall offending the Committee has applied a $50 discount to the $400 starting point. This is in conformity with the ‘totality’ principle and is a one-off discount due to both fourth and fifth charges being combined and heard together.

[52] Therefore, after consideration of all the factors the Committee is satisfied that a fine of $350 is deemed reasonable; fair and proportionate under the circumstances in relation to charge 2 (considering the fine imposed for charge 1).

CONCLUSIONS:

[53] In relation to Charge 1, the fourth breach of the Rule, Mrs Lincoln-Papuni is fined $300.

[54] In relation to Charge 2, the fifth breach of the Rule, Mrs Lincoln-Papuni is fined $350.

Costs

[55] 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.

G R Jones
Chair