Non Raceday Inquiry – Written Decision as to Penalty dated 12 September 2023 – Tennielle Bishop
MULAAZEM SHAMTAARI, MULAAZEEM SOUTHERN POINT, MULAAZEM FINDERZ KEEPAS, MULAAZEM ZOE SPICE
Penalty: Owner Tennielle Bishop is disqualified for 10 years
1. A defended hearing took place at Awapuni Racecourse on 7 August 2023. There was no appearance at the hearing by Ms Tennielle Bishop, the Respondent. The hearing therefore proceeded in her absence by way of formal proof.
2. The Adjudicative Committee, having heard evidence from the Informant, including expert evidence in person from Registered Veterinarian Dr Phylisia Loh, and also evidence from RIB Investigator Ms Georgie Murrow, found the charges proved.
3. On the basis of the evidence, the Adjudicative Committee concluded that the Respondent had committed a Serious Racing Offence under the NZTR Rules of Racing (Rules) under Rule 801(t) more particularly, breached Rule 1402(1)(a) and Rule 1402(8), that on 2 May 2023 at Levin Racecourse, the Respondent, being an Accountable person, failed to comply with the NZTR Welfare Standards (Welfare Code) by taking all reasonable steps to ensure the physical health needs of four thoroughbred horses were met. The circumstances of the offence and findings of the Adjudicative Committee are contained in the Written Reasons of Decision previously issued (RIB v Bishop RIB26049).
4. Penalty submissions were required to be made in writing by the Informant on or before 21 August 2023, and by the Respondent on or before 4 September 2023.
5. In written submissions from Mr Grimstone, for the Informant, highlights that at the time the four horses were uplifted they were dehydrated, malnourished, suffering from mechanical laminitis and endoparasites.
6. The Informant notes the Respondent was previously investigated by the SPCA for similar offending, however the SPCA did not prosecute at that time due to a dispute over the horses’ ownership resulting from matrimonial separation.
7. Dr Loh has confirmed in her professional opinion, the horses in question were not afforded adequate care to meet welfare standards, in particular the main principle of animal welfare, being freedom from hunger and thirst, had not been met.
8. The Informant further notes the Adjudicative Committee’s further specific observations as to various failings by the Respondent, which gave clear evidence that the Respondent had failed to take all reasonable steps to ensure the physical health and behavioural needs of the horses were met in a manner in accordance with good practice and scientific knowledge.
9. The Adjudicative Committee is directed to the case of RIU v L and the relevant principles to be weighed up in imposing penalty.
10. It is noted by the Informant that this is the second case of its kind, therefore there are limited cases before the Adjudicative Committee or its predecessor, that provide guidance in terms of ascertaining the appropriate penalty. The case that preceded this matter was that of RIB v Lewis, which the Informant submits is similar in nature, in that the condition of the horses deteriorated over a period of time despite intervention by the RIB and the issuing of compliance notices.
11. The Informant further submits that serious administration cases such as RIU v McGrath may also provide helpful guidance noting that in McGrath, the JCA observed that the Industry cannot maintain its social licence in order to continue to operate without maintaining high standards of animal welfare.
12. The Adjudicative Committee is also referred to RIB v Collins, where Mr Collins was sentenced to community work and disqualified for two years from owning or exercising authority in relation to horses, following numerous inspections and multiple enforcement orders.
13. The Informant highlights that the Respondent as an Accountable person, had ultimate responsibility for ensuring the physical health needs of the horses were met. The Informant submits that the condition of the horses was a disgrace to the Industry, noting on three different occasions, the lack of access to water, and that horses suffering from prolonged thirst had been a consistent unacceptable finding.
14. The Informant also notes the Respondent’s lack of attendance at the hearing to offer any form of defence or explanation for ongoing neglect of the horses, suggesting a laisse faire attitude to the prospect of disqualification and indicating little care or concern for the horses or their future in the Industry.
15. The Informant submits that the Respondent’s offending is further aggravated by the impact her inaction could have on the Racing Industry as a whole, and that such conduct undermines the public’s perception of the sport and is totally incongruous to the values of the NZTR and those involved in the Industry.
16. The Informant submits that the appropriate penalty in this instance, is disqualification for a minimum period of ten years.
17. The Informant also seeks recovery of costs incurred by NZTR and RIB in relation to remedying the issues, including Veterinarian costs and costs for agistment, handling and rehoming.
18. In addition, the RIB seeks costs.
19. Written submissions were received from the Respondent on 5 September 2023.
20. In those submissions, the Respondent maintains that she is not guilty on the charges. It is the Respondent’s contention that the horses had adequate grass, water and nutrition while at the Racecourses, and she suggests that on numerous occasions, the waters were tipped out deliberately by a third party.
21. In addition, the Respondent suggests that she relied on other parties to do a daily check of the horses, as she was not always able to be present due to personal circumstances.
22. In relation to the condition of the horses’ feet, the Respondent suggests that this was not done because they were feral and they were difficult to handle for any farrier work, as they could turn quite nasty.
23. The Respondent suggested she has been unfairly targeted and highlights the detrimental affect these charges and other matters are having.
24. The Adjudicative Committee has previously concluded on the totality of the evidence, including expert evidence from Dr Loh, together with photographs and other exhibits provided including imaging, that the evidence was compelling and resulted in the Adjudicative Committee concluding that the charges were clearly established.
25. The Respondent’s opportunity to address the matters she now raises in written submissions, was at the hearing, and the Adjudicative Committee is not able to reopen findings it has previously made, rather must attempt to distil what has been filed by the Respondent, as mitigation where appropriate.
26. It is evident from what the Respondent has filed, that she does not consider she has any significant culpability in what took place in relation to care of these horses. Indeed, the Respondent continues to maintain the events are entirely attributable to the actions of a third party continually interfering with the water.
27. The Adjudicative Committee finds such argument unconvincing in mitigation or otherwise. The Adjudicative Committee had the benefit of considered and detailed evidence from Dr Loh and other exhibits at hearing, including photographs and medical imaging, which established a clear departure from acceptable standards of animal welfare, even setting the matters of access to water to one side, the departures from best practice were numerous and sustained and went well beyond provision of water.
28. It has been stated many times in this jurisdiction, that the holding of a Licence is a privilege, not a right, and with it comes significant responsibilities, not only to the horses in terms of their ongoing care and welfare, but the Industry as a whole in terms of ensuring it maintains its social licence to operate.
29. The Respondent’s submissions, which appear to accept no responsibility for the condition these horses were continually left in, and explanations which are entirely at odds with the Veterinarian opinion and other evidence provided (for example three of the horses were able to be successfully rehomed, together with undergoing urgent farrier care), simply does not reconcile.
30. The stance adopted by the Respondent gives the Adjudicative Committee no confidence that the Respondent is a person who can hold primary responsibility for the care of registered thoroughbreds going forward.
31. The Adjudicative Committee has had regard to the personal circumstances of the Respondent and is sympathetic to the wider personal circumstances she has raised. Nevertheless, as the Informant has submitted, this is not the first time such issues have arisen, and the Respondent was afforded significant leeway by the SPCA in a previous situation.
32. It was incumbent on the Respondent, so long as she remained a Licence Holder with primary responsibility for the horses concerned, to take adequate steps to ensure their ongoing wellbeing, and/or make appropriate arrangements for the horses’ transfer or disposal if she considered she was not in a position to provide that primary care to the horses on an ongoing basis. The horses concerned were wholly reliant on the Respondent to ensure their welfare needs were met. They were evidently not met, and what resulted, was a highly distressing situation, which ultimately resulted in one of the horses needing to be euthanised.
33. This level of dereliction of obligations as a Licence Holder cannot be overlooked by the Adjudicative Committee, nor brushed over lightly.
34. The obligations of Accountable persons for animal welfare have been well signalled within the Industry and the penalties must reflect the seriousness with which the Industry takes such matters.
35. Prior to considering aggravating and mitigating factors, the Adjudicative Committee accepts the indication from the Informant that a starting point of ten years disqualification is appropriate.
36. As noted, it is an aggravating factor that the Respondent has previously been warned by the SPCA for similar neglect and was afforded leeway due to personal circumstances on that occasion.
37. There is no doubt in the Adjudicative Committee’s mind that the only appropriate sanction in this instance is a disqualification.
38. The Adjudicative Committee has had regard to the personal circumstances of the Respondent, and for that reason has determined to accept a starting point with no further uplift on this occasion.
39. The Respondent is disqualified for a period of ten years.
40. The RIB, both in its Informant and Adjudicative capacity, have incurred significant expense in making arrangements for a defended hearing at Awapuni, on the basis that the Respondent indicated her intention to defend the charges.
41. The Respondent was entitled to defend the charges – but having failed to attend the hearing and follow through on the defence of the charges, it is reasonable in the circumstances that a costs order be made against her.
42. Additionally, NZTR and the RIB have incurred significant direct costs in the rehabilitation of the horses including remedying the default by the Respondent. As has been highlighted in this Decision, animal welfare is something the Industry takes very seriously, and where Licence Holders fail to fulfil their obligations, they should reasonably expect to incur the costs of having such failures remedied on their behalf.
43. The total costs incurred by NZTR and RIB total $12,681.71, comprised of:
Veterinarian costs $3,517.71
Veterinarian report fee $432.00
Costs for agistment, handling and rehoming $8,732.00
44. Ms Tennielle Bishop is:
a. Disqualified for ten years commencing on 11 September 2023
b. Ordered to pay costs to the Informant of $2,500
c. Ordered to pay costs to the Adjudicative Committee of $1,500
d. Ordered to reimburse RIB Compliance $3,949.71 and NZTR $8,732.00 for the costs they have incurred for urgent veterinary services required for treatment and rehabilitation of the horses involved.
Decision Date: 07/09/2023
Publish Date: 15/09/2023