Non Raceday Inquiry – Written Decision dated 19 December 2023 – Mikayla Clark

Introduction

[1] This is the Penalty Decision arising from two charges filed against Licensed Greyhound Owner/Trainer Ms Mikayla Clark (the “Respondent”).  The Respondent is the Trainer of CLIFF TOP DELTA who, following analysis of a post-race test on 29 September 2023 and a further pre-race test on 6 October 2023, returned a positive result for the Substance, Arsenic, which, when detected at a level above the allowable threshold of 800ng/mL, is deemed a Prohibited Substance.

[2] These proceedings commenced by the filing of two Information’s (charges.) Full particulars with respect to each charge are set out at paragraph (4) of this Decision.

Decision and Penalty

[3] The Respondent admitted both charges and after evaluating the evidence and considering the helpful submissions lodged by the RIB and the Respondent, the following penalties were imposed by the Adjudicative Committee:

3.1 With regards to Information A15772, the Respondent is fined $800, of which the full amount is suspended for 12 months per r174 (3); and

3.2 With regards to Information A15773, the Respondent is discharged on the condition that she does not commit any further breach of the Rules for a period of 6 months per r177.

The Charges

Charge 1 – Information A15772

[4] On Friday, 29 September 2023 at a race meeting conducted by Wanganui Greyhound Racing Club at Wanganui in Race 5, Mikayla Clark, Licensed Trainer of the Greyhound ‘CLIFF TOP DELTA’ failed to present the Greyhound free of the Prohibited Substance, Arsenic, at a level of 908ng/mL, being over the threshold of 800ng/mL.

Charge 2 – Information A15773

[5] On Friday, 6 October 2023 at a race meeting conducted by Wanganui Greyhound Racing Club at Wanganui in Race 6, Mikayla Clark, Licensed Trainer of the Greyhound ‘CLIFF TOP DELTA’ failed to present the Greyhound free of the Prohibited Substance, Arsenic, at a level of 1600ng/mL, being over the threshold of 800ng/mL.

[6] The charges were admitted by the Respondent, and this was confirmed following a teleconference meeting on 5 December 2023.  Once a charge is admitted, it is deemed to be proved.

The Rules

Rule 141(1)(a) provides that:

(1) The trainer or other person in charge of a greyhound:

(a) nominated to compete in an event; must present the greyhound free of any prohibited substance.

(4) A greyhound presented for an event in circumstances where subrule (1) of this rule has been breached must be disqualified from the relevant event and from receiving any benefit derived from the relevant trial, test, or examination.

Rule 174 establishes the Penalty Provisions:

(1) An Adjudicative Committee may as it thinks fit penalise a person found guilty of an offence under the Rules by any one or a combination of the following penalties:

(a) a reprimand (sometimes known as a warning or caution).

(b) a fine not exceeding $10,000.00 for any one offence except a luring and baiting offence under rule 159.

(c) suspension.

(d) disqualification.

(e) cancellation of a registration or a licence, or in the case of a Club, its affiliation to GRNZ; or

(f) warning off

(3) Any portion of a penalty imposed may be suspended for a time and pursuant to conditions that an Adjudicative Committee thinks fit. 

Disqualification of CLIFF TOP DELTA

[7] In the File Minute No (1) issued by the Adjudicative Committee on 24 November 2023, the following directive was made with regards to the disqualification of CLIFF TOP DELTA. The Minute stated:

Pursuant to Rules 141(4) and (5) the Greyhound CLIFF TOP DELTA is disqualified from the races outlined in Information’s A15772 and A15773.  And any benefit derived or stakemoney must be forfeited. 

Summary of Facts

The key salient facts are agreed and are summarised are as follows:

[8] The Respondent in this matter, Mikayla Clark, is the holder of an Owner/Trainer’s Licence issued by Greyhound Racing New Zealand (GRNZ). She currently trains from an address in Manaia.

Charge 1

[9] On Friday the 29 September 2023, Wanganui Greyhound Racing Club conducted a race meeting at the Hatrick Racecourse in Wanganui. The 2-year-old Greyhound CLIFF TOP DELTA, trained by the Respondent, was entered in Race 5, the Bitches Sprint Feature Heat.  CLIFF TOP DELTA placed second in this race, earning gross stake money of $930.

[10] A post-race urine sample was obtained from CLIFF TOP DELTA. Following analysis on 19 October 2023, the Official Racing Analyst of the New Zealand Racing Laboratory Services (‘NZRLS’) advised the Racing Integrity Board (RIB) that this sample had returned test results for the Prohibited Drug, Arsenic, at a level of 908ng/mL, this being over the allowable threshold of 800ng/mL.

Charge 2

[11] On Friday 6 October 2023, Wanganui Greyhound Racing Club conducted a race meeting at the Hatrick Racecourse in Wanganui. CLIFF TOP DELTA was entered in Race 6, the Lance Green Accountant Bitches Sprint Feature Final in which she placed 3rd, earning gross stake money of $1297.

[12] A pre-race urine sample was obtained. Following analysis on 3 November 2023, the Official Racing Analyst of the NZRLS advised the RIB that the sample obtained from CLIFF TOP DELTA on the 6 October had returned test results for the Prohibited Drug, Arsenic, at a level of 1600ng/mL, being over the threshold of 800ng/mL. This amount of 1600 was at the maximum calibration limit of the testing method used by the laboratory.

Arsenic

[13] Arsenic is a naturally occurring trace element that is normally present in Greyhounds at very low levels as a result of a normal dietary intake. An excessive amount of Arsenic has been shown to influence the cardiovascular system (GAR 1) and therefore is a Prohibited Substance when present in a sample at concentrations above that which would naturally occur through routine nutritional sources.

[14] Arsenic at a level over 800ng/mL is a Prohibited Substance within the meaning of the Rules and its presence in a Raceday sample at levels exceeding the threshold is, prima facie, a breach of the Rules.

[15] On 24 October 2023, RIB Investigators attended the Respondent’s training facility and commenced an investigation into the high Arsenic reading. In this instance, due to preliminary results from the laboratory suggesting the dog was significantly over the Arsenic threshold, this was conducted prior to the final confirmation analysis result being received from the laboratory.

[16] The Respondent was shocked to hear of the positive results, advising that the only thing she could contribute to the high readings was the fact that CLIFF TOP DELTA liked to chew her wooden kennel. She advised he had always done this and had never returned a positive result, despite being previously swabbed.

[17] It was explained to the Respondent that only selected swabs are tested for Arsenic. Subsequent enquires have established CLIFF TOP DELTA has never been previous tested for this substance.

[18] In 2022, The Australian Greyhound Welfare & Integrity Commission published an article linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breaches.

This article states:

“CCA is a wood preservative used to treat timber against rot and pests. Licking or chewing of kennels or yards with treated timber has been implicated in threshold breaches. CCA is dangerous because it contains arsenic, a known human carcinogen. Over time, the arsenic can leak out from inside the wood into the surrounding soil and onto the surface of the wood. From the surface, the arsenic can be picked up on the paws of passing pets, who later ingest it”.

[19] Whilst present at the Respondent’s property, RIB Investigators obtained samples of timber from CLIFF TOP DELTA’s kennel. These samples underwent Timber Preservative Treatment Testing conducted by IVS Laboratories to ascertain the level of Arsenic present in the timber.  At the conclusion of the testing, the Arsenic Retention Analysis returned levels of 0.171, meeting the minimum retention requirements of the specifications for H 3.2 CCA treated timber in final size/shape/form for use in New Zealand as per NZS 3640:2003.

[20] The drinking water consumed by CLIFF TOP DELTA was tested and no Arsenic was detected.

[21] A third urine sample was obtained and tested, again showing the dog to be positive to Arsenic.

[22] No other sources of Arsenic were located whilst at the Respondent’s training facility.

Conclusion

[23] It is suspected the high level of Arsenic detected in CLIFF TOP DELTA is due to the dog chewing timber. The Respondent is therefore charged under Rule 141(1)(a) of the Rules of Greyhound Racing New Zealand.

[24] As the Trainer, the Respondent has an obligation to ensure that her Registered Greyhounds are always free from Prohibited Substances when racing.

​[25] The RIB seeks disqualification of CLIFF TOP DELTA from the races concerned under 141(1)(4) Rules of Greyhound Racing New Zealand. Note: this was actioned as per Minute 1 referenced in paragraph 7 of the Decision.

[26] The Respondent has had no previous charges under the Rules of Greyhound Racing New Zealand.

Penalty Submissions – Applicant

The Applicant (RIB) provided written penalty submissions which are summarised as follows:

[27] The Respondent is a Licenced Owner/Trainer under the Rules of the New Zealand Greyhound Racing Association.

[28] The Summary of Facts are set out at paragraphs 8 to 26.  The Penalty Provisions are included following paragraph 6.

[29] The RIB submits that the principles of sentencing relevant to this charge can be summarised as follows:

• Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences.
• A penalty should also reflect the disapproval of the Committee for the type of offending in question.
• The need to rehabilitate the offender should be considered.

[30] It is submitted by the RIB that the first three principles are particularly important in this matter.

Prohibited Substance Thresholds for Arsenic

[31] On 1 October 2021, Greyhound Racing New Zealand introduced an amendment to the definition of Prohibited Substance. This amendment was introduced to create thresholds for several substances which, when above the allowable threshold, become an offence under the Rules.  This includes Arsenic as indicated below:

(iv) Arsenic at or below a mass concentration of 800 nanograms per millilitre in a Sample of urine taken from a greyhound will not breach the provisions of subrule (d) of this definition.

[32] Arsenic is a naturally occurring trace element that is normally present in Greyhounds at very low levels as a result of a normal dietary intake and environmental exposure.

[33] An excessive amount of Arsenic has been shown to have an effect on the cardiovascular system (GAR 1) and therefore is a Prohibited Substance when present in a sample at concentrations above that which would naturally occur through routine nutritional sources.

[34] During the 2022/23 Greyhound Racing New Zealand season, there have been 241 samples analysed for Arsenic, with an average level of 59ng/mL.

[35] Arsenic at a level over 800ng/mL is a Prohibited Substance within the meaning of the Rules and its presence in a Raceday sample at levels exceeding the threshold is, prima facie, a breach of the Rules.

[36] At present, there has been one previous breach of this Rule within Greyhound Racing New Zealand, that of Licensed Trainer Chloe Watson and one within the Harness Code, Licensed Trainer Ian Jamieson.

[37] Since the last breach of these Rules, there have been changes to the GRNZ Rules that now provide the option of a sentence to be suspended. The GRNZ Rules now allow for a penalty imposed to be suspended as the Committee sees fit.

Relevant Precedents Cases

RIB V Watson – April 2023

[38] On 28 November 2022, at the Auckland Greyhound Meeting conducted at the Cambridge GR Track, TEEING OFF, a dog trained and owned by Chloe Watson, returned a positive test result for the Prohibited Substance, Arsenic, at a level of 1158ng/mL, being over the threshold of 800ng/mL.

[39] The circumstances of this case are strikingly similar to that of Ms Clark in that the most probable cause, although not definitive, was the dog licking or chewing treated timber.

[40] This case, the Adjudicative Committee noted the following:

“Unfortunately for the Respondent, the hearing of this charge is caught between the phasing out of the ‘old’ and the introduction of the ‘new’. And as has already been highlighted in this decision, the new penalties empower an Adjudicative Committee to suspend all or part of a sentence (Rule 174 refers) – something that was not previously available. The RIB were supportive in this case of a suspended sentence had the breach occurred after 1 February 2023.

It is clearly the intent of the GRNZ policymakers in future cases, to permit a sentence to dealt with under increased or wider sentencing options. With that in mind, together with the need to ensure that the penalty reflects natural justice, fairness and proportionality principles balanced against the need for deterrence and accountability, the Adjudicative Committee has determined a fine less than that which would normally be imposed for a Prohibited Substance charge, is appropriate in this case.”

[41] Clearly, the Adjudicative Committee were supportive of a suspended sentence in this case, should it have been available as an option. Ms Watson was fined $1,000.

RIB V Jamieson – August 2023

[42] Mr Ian Jamieson, the Licensed (HRNZ) Trainer of the horse CALL ME SIR, failed to present the said horse free of the Prohibited Substance Arsenic.

[43] Although this case relates to the standardbred (Harness) Code rather than Greyhounds, it is similar in nature, in that the horse is suspected to have ingested the Arsenic from chewing on wooden posts.

[44] In this case, the Adjudicative Committee advised:

“The matter before the Adjudicative Committee was considered to be at the lower end of the continuum of offending, as was Watson. There was no financial benefit to be obtained from the offending, and there had already been a substantial penalty incurred by Mr Jamieson by way of the horse’s disqualification”.

Mr Jamieson was fined $800.

[45] In addition to the sentencing principles, the Adjudicative Committee should have regard to relevant Greyhound Racing Victoria precedents as below.

Victorian Racing Tribunal v S Evans – October 2022

[46] On the 25 February 2022 Greyhound Racing Victoria Licenced Trainer, Stacey Evans, failed to present the Greyhound ‘Evans Almighty’, free of any prohibited substance, namely Arsenic at a level above the prescribed threshold of 800ng/mL.

[47] The source of the high arsenic level in the Greyhound was believed to be Copper Chrome Arsenate (CCA) treated pine timber posts that were located within the dogs kennelling area. These posts had been chewed and licked by the dog in question.

[48] Ms Evans had no prior convictions and once made aware of the situation made a number of changes to the kennel facilities to ensure that the dogs were no longer able to chew the treated timber.

[49] Ms Evans received a six-month suspension, but the penalty was in turn wholly suspended for a period of 12 months. If a second relevant offence were to occur during the 12-month period, the six-month suspension would be activated.

[50] Further to the above, the Greyhound in question, EVANS ALMIGHTY was disqualified from the race and the finishing order amended accordingly.

Aggravating Factors

[51] The RIB submits there are no aggravating feature in this case.

Mitigating Features  

[52] The Respondent has been compliant, cooperative, and respectful with all RIB Staff throughout the process.  She was shocked of the positive result.  Upon learning of the result, she ceased racing CLIFF TOP DELTA and advised RIB staff she would construct a concrete kennel to house the dog in the future.

Disqualification

[53] The RIB sought the disqualification of CLIFF TOP DELTA from the races in question.  This was actioned at paragraph 7.  As a consequence, there is a loss to the Respondent of $2,227. This, however, is not to be viewed as a penalty, rather it is simply a result of presenting to race with a substance deemed to be prohibited.

[54] Arsenic falls under Category 4 of the GRNZ Prohibited Substance Schedule and has a recommended penalty starting point of 6 months and/or a fine of $5,000.

Conclusion

[55] The RIB submits that although it is difficult to ascertain the direct cause of the high Arsenic levels, as per the Summary of Facts, wood from CLIFF TOP DELTA’S kennel was tested and found to contain traces of Arsenic. It is the belief of the RIB that the most likely source of the threshold breach is from the Copper Chromium Arsenate (CCA) treated timber located in the kennel in which CLIFF TOP DELTA was housed and was chewing.

[56] As the Trainer, Ms Clark has a responsibility to ensure that her Registered Greyhounds are always free from Prohibited Substances. The RIB believes it is relevant to refer to the penalties received for similar offending in Australia, who have the ability to utilise suspended sentences.

[57] It is submitted that the offending in this case is most similar to that of Victorian Racing Tribunal v S Evans and the New Zealand case RIB v Watson.  In both cases, there was a breach of the Arsenic threshold by Trainers who had no previous convictions. Evans received a suspended sentence and as referenced previously in RIB v Watson, the Adjudicative Committee alluded to the fact that future cases may consider wider penalty options.

[58] The RIB therefore suggests that the penalty for Ms Clark be a fine of no more than $1,000, with consideration given to a suspension of this sentence for a 12-month period.

Recommended Penalty

[59] In this case, in line with previous Decisions, the RIB submits that the penalty for the Respondent be a fine of no more than $1,000, with consideration given to suspending this sentence for 12 months.

[60] Nil costs are sought by the Racing Integrity Board.

Penalty Submissions – Respondent

[61] In response to the RIB penalty submissions, the Respondent submitted written submissions which are summarised below.

[62] I do not disagree that I breached Rule 141 (1) (a) on the 29 September 2023 and October 2023, but I do not believe there is anyway any trainer would have known their dog had arsenic in their system. Cliff Top Delta had no symptoms of anything wrong with her and had been running well. After some research into arsenic after the high readings I don’t believe she had any of the symptoms of arsenic listed in multiple vet documents online. “Clinical signs can include abdominal pain, salivation, vomiting, diarrhoea, staggering, weakness, rapid weak pulse, lethargy, low body temperature, collapse, and death.” ….” Long-term or chronic exposure to lower amounts of arsenic can cause weight loss, due to decreased appetite, and nerve damage.”

[63] In my last kennel audit at (address deleted) on 15 May 2023 CLIFF TOP DELTA’S Kennel (Kennel 2) is mentioned in the section ‘Safe’, well maintained, and well-constructed facilities as an issue that needed to be repaired for “the wall to the shelter in Kennel 2 (in row of 7 kennels) had been chewed and had a sharp edge”. I believe this would have been the perfect time to educate me on the possibility of arsenic contamination or even potential poisoning as I as well as most other trainers wouldn’t know this was even possible from treated timber. Considering my kennel audit happened a month after Ms Watsons case it should have been fresh on RIB employee’s minds as something to look out for. In Ms Watsons case file on the RIB website it is mentioned in the Notes for authorities’ section (as highlighted in the decision and reasons section) as an opportunity for GRNZ and RIB to mitigate further breaches. RIB Failed to educate me on the 15 May 2023, even after seeing the kennel wall chewed, even worse they don’t mention it in the report as a reason for being unsafe for potential arsenic poisoning. If I were informed of this on the 15 May 2023, we would have built a different material kennel for CLIFF TOP DELTA as she loves to chew. This would have prevented this breach from ever happening.

[64] I don’t believe CLIFF TOP DELTA should be disqualified from the 2 races in question as arsenic has negative effects, so she gained no advantage, by having high readings in her system she was actually disadvantaged. I get no benefit from the substance being in her system and other trainers in those races were not disadvantaged at all. Just because a rule was breached doesn’t mean she should be disqualified. I would understand and agree to a disqualification if it gave her an unfair advantage or if it benefited me in some way, but it didn’t.

[65] In the last 2 months I have lost significant stakes by her not racing, especially with the way she was running. I am too paranoid she may still have traces in her system even after a kennel change with no treated timber.

[66] I believe this whole situation could have been prevented if RIB or GRNZ actually informed trainers of this possibility of arsenic in treated timber. Treated timber is widely used nationwide and there is no warning on it when you buy it to indicate it contains arsenic. There are very vague guidelines for the kennels in the rules. It would be nice if it had a list of what material should be used for making kennels or an approved GRNZ kennel supplier that meets all your specifications.

[67] It is completely impractical for trainers to test dogs for arsenic before races and it has no benefit to the trainer or the dog it really should be either a warning only offence for high level or removed from the prohibited substance (threshold). No trainer would even know where to get arsenic let alone deliberately give it to their dogs.

[68] In summary I believe I am guilty of breaching the rule but should receive a warning as there was no malicious intent, or possibility of me knowing unless you educated me at my kennel audit. The RIB should take this second opportunity to educate all registered trainers on the possibility of treated timber causing a high-level arsenic swab as this case not only effects my reputation and record, but the industry doesn’t need any more avoidable bad publicity from swabs.

Decision and Reasons

[69] GRNZ Rule LR174A which relates to penalties for Prohibited Substances Offences provides that:

… (2) An Adjudicative Committee is to have regard to the prescribed starting points when considering any matter relating to the level of penalty imposed or to be imposed in respect of an offence involving a prohibited substance.

Arsenic is Category 4 (Cat 4) Prohibited Substance and has a penalty starting point of 6 months and/or a fine of $5,000.  The Adjudicative Committee has had due regard for the starting point. The Adjudicative Committee has also had regard for the fact that GRNZ Rules provide for a flexible range of penalty options to be considered, as per the updated Rules and Regulations which came into force on 1 February 2023.

[70] Therefore, having evaluated the evidence, the helpful submissions lodged by the RIB and the Respondent, and the sentencing options that are available under the Rules, the Adjudicative Committee, having assessed the Respondent’s level of culpability to be at the low-end, determined that a fine (suspended) is the most appropriate penalty in the circumstances of this case.

[71] Based on the available evidence, it is more probable than not, the elevated Arsenic levels of 908ng/mL (Charge 1) and 1600ng/mL (Charge 2), may have arisen from CLIFF TOP DETA chewing wood in her kennel. The RIB investigation, which included testing of the kennel timber and water, could not establish any other source.  Consequently, no other reasonable cause has been advanced.  The RIB also supports the notion that the most likely source is from the Copper Chromium Arsenate (CCA) treated timber located in the kennel in which CLIFF TOP DELTA was housed and was chewing.

[72] This breach is categorised as a strict liability offence and, in that regard, it is not necessary to establish that the Respondent intended to breach the Rule. The evidence clearly points to the fact that there was no deliberate or intentional act or omission on her part that led to the breach.

[73] Additionally, there is no evidence that she knew the kennel timber contained Arsenic or that she was aware of the earlier promulgation of the article in 2022 from the Australian Greyhound Welfare and Integrity Commission linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breaches. Similarly, she may not have been aware of the comments in the RIB v Watson Decision where the Adjudicative Committee stated in its Decision at paragraph 79 the following:

…This case has highlighted the possibility that kennels that have been treated with CCA could, through chewing or licking, cause elevated Arsenic levels, through licking. This causative link may not be well known to some Industry participants. On that basis, there is an opportunity for GRNZ and the RIB, if it has not already occurred, to mitigate potential further breaches by alerting Industry participants of the findings in this case. Particularly the reference to Australian Greyhound Welfare and Integrity Commission published an article (at paragraph 17) linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breaches…

[74] Furthermore, an earlier alert to Trainers in Australia in 2016 (2016-12-20/trainer-alert-arsenic-threshold) outlined the following warning:

Trainer Alert – Arsenic Threshold…. Trainers are advised to be extremely cautious using products that contain arsenic close to racing as this may inadvertently lead to a rise in urinary arsenic levels. The administration, particularly by injection and on multiple occasions or at larger ‘off-label’ doses, of certain registered vitamin supplements close to racing may result in a level of arsenic in a subsequent sample that exceeds this threshold. Trainers are therefore advised to avoid the use of these supplements close to racing……Participants are reminded to follow good husbandry practices including using gloves to prepare the greyhound’s food, not allowing the greyhound to lick human skin, and not storing medication within the kennels.

[75] The Respondent would probably not have known about the warnings issued by the Australian Greyhound Authorities.  And it is not known the extent to which follow-up action was taken following the Adjudicative Committee’s suggestion in the RIB v Watson Decision published 3 April 2023 at paragraph 79, namely:

… Note for Authorities – This case has highlighted the possibility that kennels that have been treated with CCA could, through chewing or licking, cause elevated Arsenic levels, through licking.  This causative link may not be well known to some Industry participants.  On that basis there is an opportunity for GRNZ and the RIB, if it has not already occurred, to mitigate potential further breaches by alerting Industry participants of the findings in this case. Particularly the reference to Australian Greyhound Welfare and Integrity Commission published an article (at paragraph 17) linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breaches.

[76] The Respondent placed considerable emphasis on the fact that she did not know her Greyhound CLIFF TOP DELTA, had elevated levels of Arsenic when presented to race in the two races at the Wanganui Greyhound Racing Club Meetings, on 29 September 2023 and 6 October 2023. It was explained to Ms Clark during the teleconference she participated in on 5 December 2023, the Rule relating to the ‘presenting’ offence under which she is charged, and which she has admitted, is one of strict liability.

[77] During the call, and as indicated in her penalty submissions, she accepted the inevitability that she was liable, but pointed out she did not believe there is anyway any trainer would have known their dog had arsenic in their system (in the absence of a test).  It was made clear to her, that strict liability simply means that she is liable for the consequences of CLIFF TOP DELTA having returned a positive test result, regardless of whether she acted with intent, knowledge or was negligent. On that basis, the positive result and/or her legal responsibility is not wholly dependent on her having guilty knowledge.  All that is required, is that she presented CLIFF TOP DELTA to race on the dates concerned and it was found on analysis, to have raced with Arsenic levels above the allowable threshold of 800ng/mL.  Liability is reinforced within the relevant Rule (141(1) and (3)) which provides:

… (3) The trainer or person in charge of a greyhound presented contrary to subrule (1) of this rule shall be guilty of an offence.

[78] Although the Adjudicative Committee can only speculate that had the Respondent been advised or known about the first test result following the race on 29 September 2023 (the first breach), the second breach arising from the pre-race test on 6 October 2023 may have been averted, as it is highly likely with this knowledge, she would not have presented to start in that race.  It appears that the first test result (certificate) was issued on 19 October 2023, three weeks after the sample was taken, and in the interim, CLIFF TOP DELTA raced the following week and the results of the sample taken pre-race only became known on 3 November 2023.   The visit by the RIB to her property on 19 October 2023, appears to be the first she knew about the positive result. In this regard, it may be worth the RIB exploring whether or not it is possible to receive more timely or indicative analysis results for the likes of Arsenic. It is not uncommon for enforcement agencies to have at their disposal, Field Test Kits cable of providing an indicative result for a range of substances.

[79] The Adjudicative Committee has noted and considered the precedent cases that were submitted by the RIB and agree that the case relating to Victorian Racing Tribunal v S Evans (6/10/2022), best matches the circumstances of this case.  The two New Zealand cases, Watson (GRNZ) and Jamieson (HRNZ) are also useful in terms of framing culpability and penalty.

Mitigating and Aggravating Factors

[80] As a general sentencing principle, the end penalty imposed should be sufficiently harsh to denounce and deter any wrongful any acts or omissions that result in a breach the Rules.  But as part of the finely balanced decision-making process, the Adjudicative Committee must also take account of the particular features of the breach, and the particular circumstances of the person being penalised. This includes consideration of both aggravating and mitigating factors.

Mitigating Factors

[81] Appropriately, on this occasion, the Adjudicative Committee deems the following factors to be relevant.  These also take into account those factors highlighted by the RIB and the Respondent in their respective penalty submissions.

1. The Respondent admitted the breach, she cooperated with the RIB during the investigation and has a clear record.
2. The Respondent has accepted she breached the Rule, albeit and understandably, until it was fully explained to her during a teleconference, she struggled with the concept of strict liability.
3. The circumstances of the breach are such that there is limited likelihood of her re-offending so long as, if she hasn’t already done so, she makes necessary modifications to her kennels to ensure that CLIFF TOP DELTA or other Greyhounds (through chewing or licking) are no longer at risk of exposure to elevated Arsenic levels at or above 800ng/mL. This will have to be done at her own expense and come at a cost to her.
4. There was no intent to deceive or benefit financially or otherwise, from the breach.
5. The Respondent agreed to have the matter dealt with ‘on the papers’, thus avoiding the need for a costly hearing.

Aggravating Factors

[82] There are no aggravating factors requiring consideration of a penalty uplift.

The Revised Rules and Penalties

[83] The new offence and penalty regime came into force on 1 February 2023.  Both NZ and Australian Greyhound Rules and penalties are now aligned.  The new penalties now empower an Adjudicative Committee to suspend all or part of a sentence (Rule 174 refers) and also to impose a discharge (r) 177 for a Breach of the Rules without recording of finding of guilt or imposing a penalty.  For this to occur, an Adjudicative Committee is required to be of the opinion that the charge is proved but that it is inappropriate to inflict any punishment on the person, or any more than a nominal punishment.

[84] The RIB, in their submission, suggested that the penalty for Ms Clark be a fine of no more than $1,000, with consideration given to a suspension of this sentence for a 12-month period. The Adjudicative Committee agrees with the RIB’s submission on the basis that this breach does not necessarily require a punitive penalty.  There is more to be gained by adopting a prevention / educative approach, which is a more pragmatic way of resolution using the penalties available within the Rules.

Charge 1

[85] Together with the need to ensure that the penalty reflects natural justice, fairness and proportionality principles balanced against the need for accountability, the Adjudicative Committee has determined an $800 fine, suspended for 12 months, is an appropriate penalty with regards to Charge 1.

Charge 2

[86] With regards to Charge 2, in its discretion, the Adjudicative Committee believes this is an appropriate charge to apply Rule 177 and afford the Respondent a discharge with an order to come up for sentence within 6 months if she commits a further breach, other than for a minor Raceday incident where a Minor Infringement Notice would ordinarily suffice.

[87] Rather than exacerbating any financial hardship by imposing a hefty fine on the Respondent, this approach will enable her to spend any funds she has available, on renovating the kennel that houses CLIFF TOP DELTA, to mitigate a breach of this nature occurring again.

[88] For the sake of clarity, see Rule 177 below:

177 Breach of the Rules without recording of finding of guilt or imposing a penalty

(1) An Adjudicative Committee may, without proceeding to record a finding of guilt or imposing a penalty, discharge a person (so that no formal finding of guilt will be recorded against the person) if:

(a) a person is charged by the Racing Integrity Board with a breach of the Rules; and

(b) an Adjudicative Committee is of the opinion that the charge is proved but that it is inappropriate to inflict any punishment on the person, or any more than a nominal punishment.

(2) A person discharged pursuant to subrule (1) of this rule is to be discharged on the condition that the person does not commit any further breach of the Rules for a specified period or if no period is specified, a period of 12 months. An Adjudicative Committee may at any time revoke or vary that condition.

(3) If a person commits a further breach of the Rules in relation to a condition of discharge, the person may be dealt with for the breach for which the person was discharged by an Adjudicative Committee dealing with the further breach.

[89] As a consequence of this Decision, no penalty is imposed for Charge 2.  But Ms Clark is discharged on the condition that she does not commit any further breach of the Rules for a period of 12 months. An Adjudicative Committee may, at any time, revoke or vary that condition (r177 (2); and (3) If she commits a further breach of the Rules in relation to a condition of discharge, the person may be dealt with for the breach for which she was discharged by an Adjudicative Committee dealing with the further breach.

Conclusion

[90] In conclusion, given that this is now the second case relating to Arsenic where timber contamination was found to be the likely source, the Adjudicative Committee reiterates the Note for Authorities raised in the Written Decision of RIB v Watson (April 2023) namely:

This case has highlighted the possibility that kennels that have been treated with CCA could, through chewing or licking, cause elevated Arsenic levels, through licking.  This causative link may not be well known to some Industry participants.  On that basis there is an opportunity for GRNZ and the RIB, if it has not already occurred, to mitigate potential further breaches by alerting Industry participants of the findings in this case….

Penalty

[91] Charge 1 – Information A15772, the Respondent, Ms Clark is fined $800, all of which is suspended for 12 months per r174(3).

[92] Charge 2 – Information A15773, the Respondent is discharged on the condition that she does not commit any further breach of the Rules for a period of 6 months, and an Adjudicative Committee may, at any time, revoke or vary that condition.

Costs

[93] The matter was dealt with on the papers.  There is no order for costs.