Non Raceday Inquiry – Written Decision dated 2 August 2022 – Ethan Toomer

Introduction

[1] Licensed Greyhound Trainer, Mr Ethan Toomer (the Respondent) has admitted a charge alleging that on 28 April 2022 he presented his greyhound THRILLING STELLA to race in Race 3 at the Waikato Greyhound Racing Club when the said greyhound was brought onto the racecourse with the Category 2 Prohibited Substance, namely Methylamphetamine (Methamphetamine) and Amphetamine in breach of Rules 61.1 and 61.3.

[2] This prosecution was authorised by Mr M Clement, the Chief Executive: RIB on 2 June 2022.

Charge

[3] Information No. A17955 alleges that:

On the 28th of April 2022, Ethan Toomer, Licenced Public Trainer & Owner was in charge of the greyhound THRILLING STELLA who ran in Race 3 at the Waikato Greyhound Racing Club meeting at Cambridge Raceway. He failed to present the greyhound free of the Category 2 Prohibited Substance, Methamphetamine and Amphetamine, being an offence under the provisions of Rules 61.1 and punishable pursuant to Rule 63.1 and 61.4 of the New Zealand Greyhound Racing Association Rules. 

Rules

[4] Rule 61.1 provides:

The Owner, Trainer, or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance. 

[5] Rule 61.3 provides that:

“Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.”

Plea

[6] The Respondent indicated on the Information that he admitted the breach. The charge is therefore deemed to be proven.

Determination on the papers

[7] With the consent of the parties, the Adjudicative 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 Rules of Racing of the New Zealand Greyhound Racing Association Inc (GRNZ).

[8] In a written statement dated 19 July 2022, the Respondent said, “I do not wish to be present at the hearing and would like the matter to be heard on the papers”.

Penalty Provisions

[9] The Penalty Rule is r63.1 which provides that:

“Any Person found guilty of an Offence under these Rules shall be liable to:

(a) a fine not exceeding $10,000 for any one (1) Offence except a luring/baiting Offence under r 86; and/or

(b) Suspension; and/or

(c) Disqualification; and/or

(d) Warning Off.”

[10] In addition, Rule 61.4 provides that:

“Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”

[11] The starting point for a Category 2 Prohibited Substance breach is 5 years disqualification, as established by NZGRA – Categories of Prohibited Substances. The NZGRA schedule of ‘Categories of Prohibited Substances,’ sets the penalty starting point at 5 years disqualification for a Category 2 breach.

Summary of Facts

The salient facts are summarised as follows:

[12] On 28 of April 2022 the Respondent, a Licenced Public Greyhound Owner/Trainer was in charge of the greyhound THRILLING STELLA who placed second in Race 3 at the Waikato Greyhound Racing Club meeting at Cambridge Raceway. As a result of the second placing THRILLING STELLA received $480 in stakemoney.

[13] Prior to Race 3, THRILLING STELLA was selected for a pre-race swab and on the 12 May 2022, New Zealand Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing the sample positive to the controlled drugs Methamphetamine and Amphetamine.

[14] Methamphetamine and Amphetamine are Category 2 Prohibited Substances per the 5^th Schedule of the GRNZ Rules.

[15] As the Licensed Owner/Trainer of THRILLING STELLA, the Respondent is therefore in breach of Rule 61.1 and is liable for a penalty to be imposed pursuant to sections 63.1 and 61.4 of the Rules.

[16] The Respondent currently owns four greyhounds with three in training. They are kennelled at his father’s Pokeno address.

[17] On the 19 May 2022, operational activity was undertaken by the RIB at Mr Toomer’s address and kennels.

[18] The Respondent was interviewed during which he declined to have a “B Sample” tested and signed the appropriate declaration to that effect.

[19] The Respondent advised that he was responsible for the day-to-day operation of the dog, including feeding and that no one else assists him with the dog.  He further acknowledges that on the day of the race, on 28 April 2022, no one else would have had contact with the dog.

[20] The Respondent made admissions as to consuming Methamphetamine “not too often” initially stating that he had last used it on the Friday prior to the interview. When questioning further regarding his consumption of Methamphetamine he further stated that he used it “Once a week, once a month, yearly” before stating “Once a week.” He further stated that he had been using Methamphetamine for one year.

[21] When questioned about his consummation/usage of Methamphetamine around the race day on 28 of April 2022 he stated: – “Not on the day but a possibility. It wouldn’t have been on the day going to Cambridge cos I go down there with Phil.” “The day beforehand, yeah.”  Further questioning around recent Controlled Drug usage, with Mr Toomer admitted to smoking Methamphetamine two days ago.

[22] The Respondent consented to undergo in-field drug screening conducted by The Drug Detection Agency [TDDA]. A urine sample and hair follicle sample were taken from him with the initial urine screening returning a non-negative for the presence of Methamphetamine. Both samples were packaged and sent by TDDA to independent laboratories – ESR and Omega Laboratories for analysis.

[23] The analysis of the Respondent’s hair follicle by Omega Laboratories, confirmed the positive result to the controlled drugs – Methamphetamine, Amphetamine and THC Metabolite.

[24] The ESR Urine Drug Test Report for the Respondent’s sample, was positive for both Methamphetamine and Amphetamine.

[25] Other than a warning for a raceday breach the Respondent has no previous history.

Penalty Submissions – Applicant

[26] Mr Carr provided the Adjudicative Committee with written penalty submissions. These are summarised as below.

[27] The Respondent, a Licensed Public Trainer, is 29 years old and has been involved in the industry since November 2013 working as a handler and obtained his Greyhound Public Trainers License on 8th April 2021.

[28] At the time of the offending, he owned four greyhounds, three in training from his father’s Pokeno property.

[29] The Respondent has admitted the breach.

[30] The Adjudicative Committee is referred to the Appeals Tribunal decision in RIU v L (May 2019) which provides that:

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/ and those who are to deal with the profession….A common thread in cases involving serious misconduct is for the regularity tribunal generally to focus on the interests and reputation of the profession as being  more important than the fortunes of the individual offending member….The tribunal:

• must endeavour to reach a proportionate balance between:
• the public interest
• the interests of the offending member
• the interests of the professional body as a while
• the seriousness of the offending any aggravating and mitigating factors.

[31] The principles of sentencing relevant to this charge can be summarised briefly:

• 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.

[32] The Applicant highlighted ‘public interest’ considerations with reference to RIU v Alford (2021), where it was said that:

If animal welfare standards are not upheld in the industry and when necessary, with condign sanctions by the Judicial Control Authority, the industry cannot maintain a social license in order to continue to operate.

Methamphetamine is a potent central nervous system stimulant which poses significant animal health and welfare issues, it is an illegal Class A drug. 

[33] The Adjudicative Committee referred to other cases where Methamphetamine is a factor, namely, RIU V Donoghue (2019), RIU V Turnwald and RIU V K Toomer (2020).

In Turnwald it was said that any penalty imposed must act to denounce this offence. The nature of the drug involved, namely Methamphetamine, is a particularly aggravating factor and the need for general deterrence requires a more severe penalty.

[34] In RIU V K Toomer (2020) it was said that …. There is a need to maintain the confidence and integrity of greyhound racing at every level, including betting public who wager on the outcome of races.

Mitigating Factors

[35] Mitigating factors include:

1. The Respondent’s admission of the breach; and
2. The Respondent has been co-operative throughout the process.

Aggravating Factors

[36] Aggravating factors include:

• That Methamphetamine is a Class A controlled drug and Amphetamine a Class B controlled drug under the Misuse of Drugs Act 1975.
• That Methamphetamine poses a significant animal welfare issue to the Greyhound involved.
• That the Respondent has admitted regular and ongoing personal use of the drug Methamphetamine and hair samples provided confirmed positive results to the controlled drugs – Methamphetamine, Amphetamine, and THC Metabolite. And a urine sample provided showed positive for both Methamphetamine and Amphetamine.
• That the Respondent would be aware of the risks associated with the drug use because less than 2 years ago a Methamphetamine positive arose from another dog trained on the property. That resulted in his father and the dog being disqualified. The RIB therefore submits that given the previous case the Respondent would be aware of the importance of keeping drug use away from his animals and is therefore fully culpable of this offending.

[37] With regards to penalty the RIB submits that in this case it should be a 3-year period of disqualification, with a starting point of 2.5 years. In support of a 3-year disqualification, the RIB refers to the following precedent penalties:

• RIB V Turnwald (Appeal 2021)– Licensed Trainer was disqualified for 18 months and ordered to pay costs of $3,000 to RIU and $500 JCA.
• RIU v K Toomer (2020) – Licensed Trainer was disqualified for 14 months.
• RIU V Schofield (2018) – Licensed Trainer was disqualified for 2 years – upheld by the Appeal’s Tribunal.

[38] The RIB submits that the offending in this case is significantly more serious than any of the cases mentioned above as it involved the use of a Class A, illicit drug, and subsequent contamination of a dog.

[39] The offending is serious in nature; it not only undermines the integrity of the racing industry but poses a serious animal welfare and safety issue. Any penalty must not only demonstrate a denunciation of this type of offending but also function as a deterrence to others.

[40] The reputation of the industry relies on members following the Rules and breaches such as these undermine public trust and confidence and bring the industry into disrepute.

Costs

[41] The RIB does not seek costs in this case.

Disqualification Order 

[42] The RIB seeks an order for the disqualification of THRILLING STELLA from Race 3, at Cambridge GRC on 28 April 2022 and the repayment of the 2nd place stake of $480.

Penalty Submissions – Respondent

[43] There is no requirement or obligation on the Respondent to submit penalty submissions.

[44] On this occasion the Respondent was offered the opportunity to submit submissions but elected not to do so.

Discussion and Reasons for Penalty

[45] NZGRA has issued a schedule of “Categories of Prohibited Substances”. This ‘presentation’ breach is classified as “Category 2” and according to the schedule the penalty starting point is set at 5 years disqualification. The starting point for Category 2 breach does not differentiate between presentation (r61.1) and an administration (r61.2) breach in terms of the starting point.

[46] In determining the penalty, the Adjudicative Committee has had due regard for the impact this presenting breach has had on (1) public perception of Greyhound Racing as a whole; (2) on the integrity of the race that THRILLING STELLA competed in; (3) animal welfare concerns relating to the effect the prohibited substance may have had on the greyhound THRILLING STELLA; and (4) the need to maintain the confidence in integrity of greyhound racing at every level, including the betting public who wager on the outcome of races.

[47] The Respondent would have been aware of the dangers of cross-contamination resulting from his personal use of Methamphetamine. This is not a situation of ‘one off’ use of the drug.  He has admitted using Methamphetamine on a regular basis for the past year.  Of real concern is that less than 2 years ago his father, a former Greyhound Trainer, was disqualified from training because another sibling, a Methamphetamine user, contaminated one of his greyhounds, on the very same property that the Respondent now uses to kennel his greyhounds.  It is simply inconceivable that the Respondent would not have been aware of the risks associated with his use of the drug Methamphetamine. Therefore, it is on that basis that the Adjudicative Committee has assessed Mr Toomer’s level of culpability as being in the ‘high’ range.

[48] The Adjudicative Committee has noted the three precedent cases which were highlighted by the RIB.  The main point of difference in this case is that the contamination (i.e., the presence of Methamphetamine can, by his admission, be linked to the Respondent’s personal use of the drug).  There are also other cases in the thoroughbred code where it has been established that a winning or placed horse has returned a positive swab to Methamphetamine because of contamination due to Methamphetamine use by its Trainer; for example:

• RIB v Lockett (April 2022) – 3 years disqualification.
• RIU v T Newton (October 2014) – 3 years disqualification.

[49] The Adjudicative Committee agrees with the RIB submission that there are several aggravating factors associated with this breach; in particular:

• That Methamphetamine is a Class A controlled drug and Amphetamine a Class B controlled drug under the Misuse of Drugs Act 1975.
• That the Respondent acknowledged he has been using the drug regularly for the past year and has continued to train his greyhounds throughout that period.
• That Methamphetamine poses a significant animal welfare issue to the greyhound involved in this breach (THRILLING STELLA) and potentially his other greyhounds.

That the Respondent would have had a level of awareness of the risks posed by cross-contamination due to his father’s situation.

[50] There are few, if any mitigating factors, however the Respondent is entitled to credit for (a) his admission of the breach; (b) for agreeing to have the case determined ‘on the papers’ thus reducing the costs that might have otherwise been incurred because of a lengthy hearing; and (c) the Respondent has a good record.

[51] This case must serve as a warning, a deterrent and timely reminder to others in the industry who may contemplate using prohibited drugs whilst they have Greyhounds in their care.  Several cases have emerged in recent times where the significant risks of cross contamination have been highlighted, for example RIU v Donoghue (2019) and RIU v K Toomer (2020).  In both cases it was said that:

…. Methamphetamine is a Class A controlled drug. The issues associated with its use are well documented and it is said to be at the heart of many health, social and economic problems within communities across the whole of New Zealand. The racing industry is a community in its own right and is not immune from the effects and consequences of this drug. Thankfully, the detection of Methamphetamine is a relatively rare occurrence within racing. But a concern is the emerging risk of cross contamination. An increasing number of positives have emerged….

[52] Under the circumstances of this case the Adjudicative Committee has adopted 2 years and 9 months disqualification as the starting point.

[53] In consideration of the aggravating factors a 6-month uplift is applied (3 years 3 months).

[54] In consideration of the mitigating factors a 3-month reduction is applied.

[55] According, we impose a 3-year disqualification.

[56] So that the Respondent has sufficient time to make new arrangements for the kenneling and/or training of his greyhound(s), the disqualification comes into effect 14 days from the publication date of this decision.

Disqualification of Greyhound

[57] Pursuant to r 61.4 we disqualify THRILLING STELLA from Race 3 at the Waikato Greyhound Racing Club meeting at Cambridge Raceway, on 28 April 2022.

[58] We order repayment of the second-place stake money of $480.

Costs

[59] The RIB has not sought costs and there is no order for Adjudicative Committee costs as the outcome was determined ‘on the papers’.