Non Raceday Inquiry – Reserved Penalty Decision dated 16 June 2022 – John McInerney

BACKGROUND:

Following a defended hearing on 27 April 2022, a charge against the Respondent, Licensed Greyhound Trainer, John McInerney, was found proved in that he failed to comply with GRNZ Health and Welfare Standards (“the Welfare Code”) and in doing so failed to provide proper care for the welfare of HOMEBUSH HERO, a Greyhound under his control by not physically inspecting the dog to ensure it was free from injury prior to racing.

The facts are set out in some detail in the Adjudicative Committee’s written decision dated 23 May 2022, together with the Adjudicative Committee’s reasons for its finding.

The parties were directed to file penalty submissions in writing and such submissions have now been received.

PENALTY SUBMISSIONS OF THE APPLICANT:

1.  The Respondent has held a Trainer’s Licence for many years and currently trains race-dogs out of his two properties interisland.

2.  The RIB believes that an appropriate penalty for this breach is a $2,000 – $2,500 fine.

3.  The health and wellbeing of greyhounds is of utmost importance and concern to GRNZ and crucial to the future of Greyhound Racing. The social licence of the Industry is under challenge.

4.  There is an expectation that a Licenceholder’s record, in relation to matters that concern the Welfare Code, should be exemplary.

5.  It is recognised that Ms Hedges was the person in charge of HOMEBUSH HERO for the journey to Invercargill and for the daily physical inspection of the dog while there.  This duty had been entrusted to her by the Respondent, who has ultimate responsibility under the Rules.

6.  There appear to be no charges arising from similar circumstances in Greyhound Racing, or either of the two equine codes.

7.  The Adjudicative Committee was referred to the case of  RIU v B & R Goldsack (2019) in which a greyhound had been left unattended in the back of a car at the racetrack for a period of time with a barking muzzle on, little ventilation and in direct sunlight. The dog was examined by the raceday vet and diagnosed with mild heatstroke, resulting in it being scratched. The Trainer was fined $1,800 and the handler and person in charge of the dog on the day was fined $750.

Mitigating Factors

8. The Respondent and his employees have been cooperative throughout the investigation and prosecution.

9.  The Respondent operates a large-scale kennel facility at Homebush with up to 100 race dogs. GRNZ records detail that, in the completed 2020/2021 season, the Respondent had 218 greyhounds race for 6,669 starts, and 229 greyhounds for 5,697 starts in the 2019/2020 season.

Aggravating Factors

10.  The Respondent  has one previous welfare-related breach, RIU v J McInerney & R Armstrong (2018), where five of six greyhounds, under the direct care of Mr Armstrong, died while being transported on the ferry from Wellington to Picton. The Respondent, as the Trainer, was fined $5,000 and ordered to pay costs of $6,500. Mr Armstrong was fined $1,000.

Costs

11.  The RIB seek no costs other than reimbursement of the sum of $593.00, being the travel cost between Invercargill and Christchurch for its  primary witness, Dr McCurdy.

Conclusion

12.  Given the mitigating and aggravating factors as listed and the overall circumstances considered in this case, the RIB submits a $2,000 – $2,500 fine is an appropriate penalty.

PENALTY SUBMISSIONS OF THE RESPONDENT:

The Respondent filed the following written submission:

“I believe the appropriate penalty for this breach is a fine of $750. I made the call not to remove the tail bandage after checking HOMEBUSH HERO prior to kennelling. This will not happen again. I have instructed my staff to remove any tail bandaging before the pre-race vet check to allow the vet to check properly, and then re-bandage.

My family and my staff have suffered from the media “name and shame” from this breach and the other false allegations.

REASONS FOR PENALTY:

1   The Five Freedoms model of animal welfare, first developed in the 1960’s, is recognised internationally. The Five Freedoms are referred to in the Health and Welfare Standards of New Zealand Greyhound Racing Association (also referred to as the Code of Welfare or Welfare Code).  The Five Freedoms include freedom from discomfort  and freedom from pain, injury and disease.

2.  Section 8 of the Welfare Code (effective September 2020) provides:

8.1  All greyhounds must be visually and physically inspected at least once daily to monitor their health and welfare.

3.  The Adjudicative Committee has found that the Respondent has failed in his duty to comply with this requirement. His staff member has failed to inspect, to the required standard, the worsening tail injury to the Greyhound, HOMEBUSH HERO, trained by him. This tail injury or wound was bandaged some 48 hours before the dog’s race at Invercargill on 22 February 2022, and no proper inspection of the wound was made, subsequent to that, until it was discovered in a nasty state in a post-race veterinary inspection.

4.  The facts and the reasons for the Adjudicative Committee’s finding are set out at length in its decision dated 23 May 2022.

5.  Charges involving animal welfare in Greyhound Racing in this country have been rare. The Applicant was able to cite only two such cases in his penalty submissions, neither of which concerned Section 8.1 of the Welfare Code – the requirement to visually and physically inspect at least once daily. The level of offending in the McInerney case was, clearly, higher than in the present case while, in the Goldsack case, it was arguably higher but involving quite different circumstances.

6.  McInerney pre-dated the Welfare Code. The Goldsack case in 2019 appears to be the only charge brought by way of a breach of the Code. That case involved a Greyhound being left in the back of a vehicle, in direct sunlight, with little or no ventilation and wearing a barking muzzle that was too tight. The dog was found, upon being examined by the veterinarian, to have an elevated temperature and to be suffering from mild heat stroke. The Trainer was fined $1,800.

7.  Greyhound Racing New Zealand is making a determined effort to address, what is perceived by some as, ongoing animal welfare issues in Greyhound Racing and the Welfare Code was implemented with this in mind. GRNZ is looking for harsher penalties in animal welfare cases and the Adjudicative Committee has this in mind.

8.  Any charge involving animal welfare is a serious matter and needs to be treated as such. Having said that, the circumstances of the present case are not the worst one could conceive of. This is not a case of serious neglect but, rather, one of failing to meet, or falling short of, the high standard expected as far as the health and welfare of HOMEBUSH HERO was concerned. We have no reason to doubt that the Respondent’s employee, who was responsible for that Greyhound’s health and welfare during the trip to race at Invercargill, believed that it was not necessary to carry out a thorough inspection of the tail injury / wound by removing the bandage and inspecting it. That such an inspection should have been done is now confirmed by the Respondent himself when he states, in his penalty submissions, that it was his call not to remove the bandage prior to kennelling and he gives an undertaking that it will not happen again. It is to his credit that he now acknowledges this. This is a mitigating factor.

9.  The Applicant has identified as mitigating factors that the Respondent and his employees have been cooperative during the course of the investigation and prosecution of the charge and also, relevantly, that the Respondent operates a large-scale kennel facility with up to 100 race dogs. He refers us to the fact that, in the 2020/2021 season, the Respondent had 218 greyhounds compete in 6,669 races and 229 greyhounds for 5,679 starts in the 2019/2020 season. These are quite staggering statistics which demonstrate that the Respondent has an exceptional animal welfare record and that the present breach is out of character.

10.  The Respondent’s previous breach in 2018 referred to in the Applicant’s penalty submissions cannot be ignored. However, the circumstances of that breach were quite different and it is not, in our view, a significant aggravating factor.

11. Because of the lack of precedents, it is not an easy matter for this Adjudicative Committee to establish a starting point for penalty in this case. It is noted that the Applicant has submitted that an appropriate penalty would be a fine of $2,000 – $2,500. On the other hand, the Respondent has submitted that the fine should be $750. That submission, on the Respondent’s part, is fanciful.

12. In the Goldsack case, the Judicial Committee adopted a starting point for penalty of a fine of $2,000 and gave a “very modest discount” of $200 for the Respondent’s good record. This Adjudicative Committee is of the view that, since that time, there has been increasing emphasis on animal welfare in the Greyhound code, to the extent that we need to reflect those concerns in the penalty in this case. We consider that the Goldsack penalty would be considered light in the present climate. We have therefore adopted a higher starting point for penalty in the present case of $2,500, which was the top of the penalty range submitted by the Applicant.

13. The penalty needs to be one that will achieve the principal purposes of sentencing – that is to say, to hold the Respondent accountable for the harm done, to promote in him a sense of responsibility for that harm, to denounce the conduct and to deter him and other persons from committing the same or a similar offence. In essence, any penalty needs to stress the importance of the Welfare Code and to underline the “duty of care required to meet the physical, health and behavioural needs of Greyhounds under the jurisdiction of GRNZ” (the Welfare Code).

14. HOMEBUSH HERO, we were told by the Respondent at the hearing of the charge, has made a full recovery and is back racing. We note that, up to the date of this decision, it has raced 13 times since the Invercargill race on 22 February. It is a factor to consider that HOMEBUSH HERO appears to have suffered no long-term effects from the injury.

15.  From the starting point of $2,500 (above), we are able to give the Respondent a discount for the mitigating factors referred to in paras 8 & 9 of these Reasons – that is to say, cooperation during the course of the investigation and prosecution, excellent animal welfare record, and subsequent acknowledgement of fault. That discount we fix at $500.

16. The Adjudicative Committee believes that the purposes of sentencing can be met, in this case, by a fine of $2,000, which we arrive at after weighing up all of the factors referred to in these Reasons.

CONCLUSION – PENALTY AND COSTS

The Respondent is fined the sum of $2,000.

In addition, he is ordered to pay to the Racing Integrity Board the following sums:

1.  The sum of $593.00 being the amount of costs sought by the Applicant for the travel costs of Dr McCurdy; and

2.  The sum of $500.00, being a contribution to the hearing costs of the Adjudicative Committee.