Non Raceday Inquiry – Written Decision dated 20 September 2021 – Trent Agent and Kimberly Williams

EVIDENCE:

Introduction

[1] This penalty decision deals with two Information’s filed against the Licenced Greyhound Training Partnership of Mr Trent Agent and Ms Kimberly Williams (“the Respondents”) alleging breaches of Rule 45.11. The first charge relates to Race 11 at the meeting conducted by the Wanganui Greyhound Club, on 3 September 2021. The second charge relates to Race 2 at the Wanganui Greyhound Club, on 8 September 2021. Both charges were admitted by the Respondents.

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 Committee was provided with and perused relevant documents including Information Numbers A11027, A11031, the summary of facts and penalty submissions.

The Charges

[4] Charge 1 – Information Number A11027 alleges that in relation to Race 11 at the Wanganui GRC on 3 September:

The Respondent presented BIG TIME TATUM to race 2.1 kg down in weight from its previous start on 12 August 2021.

[5] Charge 2 – Information Number A11031 alleges that in relation to Race 2 at the Wanganui GRC on 8 September 2021:

The Respondent presented HARDCORE SPARTEN to race 1.7 kg down in weight from its previous start on 11 August 2021.

[6] Charge 1 is the Kennel’s fourth breach of the Rule within the previous 120 days.

[7] Charge 2 is the Kennel’s fifth breach of the Rule within the previous 120 days. The two breaches have been referred to an Adjudicative Committee by Stewards pursuant Rule 62.3 (a) and (b) which provides 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 Rules

[8] The relevant Rules are as follows:

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.

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.

The Plea

[9] Both charges are admitted by the Respondents and the Information’s have been endorsed accordingly by Ms K Williams on behalf of the Training Partnership.

Summary of Facts

[10] Prior to the start of each Greyhound meeting Stewards are required, pursuant with Rule 41, to ensure that the weighing instrument i.e., scales, are checked for accuracy using the “check” weights supplied by the Club.

[11] The check weights are 20 kilograms and either 10 kilograms or 5 kilograms with the general process in the Central Districts being a check of the scales with all three available weights. If Stewards are not satisfied with the results of the inspection, they will allow for no weights to be recorded for any Greyhound competing at the meeting and notify the Club who shall take steps to remedy the matter.

[12] On each of the race days relevant to Information’s A11027 and A11031 the Stewards were satisfied that the scales were accurate.

Information A11027

[13] On the 3 September 2021 the Respondents entered BIG TIME TATUM in Race 11, the Accell Leading The Way In Canin Therapy C3, at the Wanganui Greyhound Racing Club.

[14] BIG TIME TATUM was weighed twice with both recorded weights being the same, i.e., 28.1 kg which represents a 2.1 kg decrease on his previous race weight of 30.2 kg on 11 August 2021.

[15] This is the Partnership’s fourth breach of Rule 45.11 within the past 120 days, with the other three breaches being:

• 4 August 2021 – Wanganui GRC – BIG TIME JARRED – (fourth offence within the 120-day reset period and referred to Adjudicative Committee) – fined $350.

• 11 July 2021 – Auckland GRC – BIG TIME JARRED – (fourth offence within the 120-day reset period and referred to Adjudicative Committee) – fined $300.

• 23 June 2021 – Wanganui GRC – ALLEGRO LINCOLN – minor infringement $150.

Information A11031

[16] On 8 September 2021 the Respondents entered HARDCORE SPARTEN in Race 2, the Pearsons Farms C0, at the Wanganui Greyhound Racing Club.

[17] HARDCORE SPARTEN was weighed twice with both recorded weights being the same, i.e., 28.7 kg which represents a 1.7 kg decrease on his previous race weight of 30.4 kg on 11 August 2021.

[18] This being the Partnership’s fifth breach of Rule 45.11 within the past 120 days, with the other four breaches being:

• 3 September 2021 – Wanganui GRC – BIG TIME TATUM (fourth offence with the 120-day reset period– (Information A11027 refers).

• 4 August 2021 – Wanganui GRC – BIG TIME JARRED – (fourth offence within the 120-day reset period and referred to Adjudicative Committee) – fined $350.

• 11 July 2021 – Auckland GRC – BIG TIME JARRED – (fourth offence within the 120-day reset period and referred to Adjudicative Committee) – fined $300.

• 23 June 2021 – Wanganui GRC – ALLEGRO LINCOLN – minor infringement $150.

[19] On both occasions Ms Williams represented the Training Partnership. When spoken to by Stewards concerning the first breach (Charge 1) she freely admitted the offence. With regards to the second breach (Charge 2) she initially queried whether there had been a 28-day gap since HARDCORE SPARTEN had last competed in a race pursuant with Rule 45.12, however on having the relevant Rule explained to her, the Respondent signed the Information, thus acknowledging that the breach was admitted.

Reason for Decision

[20] As the charges are admitted they are deemed to be proved.

Submissions for Penalty

Penalty Submission – Informant

The Applicant Mr Coppins provided the following submissions:

[21] The Respondents are a licenced training partnership under the Rules of Greyhound Racing New Zealand (GRNZ).

[22] 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.

[23] The Respondents have admitted a both charges and the facts are not in dispute.

[24] These charges are the Respondent’s fourth and fifth breaches. A breach of Rule 45.11 is generally dealt with by way of a Minor Infringement Notice for the first three breaches. On the fourth breach an Information is completed and submitted to the Adjudication Committee for consideration.

Precedents

[25] The following decisions refer to penalties imposed for fourth and fifth breaches of the Rule.

Fourth breach:

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 $300.

RIU v Agent/Williams, 4 August 2021, fourth breach $350.

Fifth breach:

[26] At time of writing there is only one precedent for a fifth offence within the 120-day reset period; namely FEDERAL MORGAN on 13 June 2021, where the proposed fine was “set at the Committee’s discretion” with a starting point of $400 for a fifth offence and increased by a further $100 to reflect the Status of the Race. Refer RIU v L Cole, 13 June 2021, fined $500.

[27] Charge 1 – The RIB has historically suggested a starting level of $300 for the fourth breach of Rule 45.11, with that figure i.e., $300 being the suggested starting point in this instance.

[28] Charge 2 – With only one precedent for a fifth breach the RIB leaves the decision on penalty to the Adjudicating Committee to determine.

Penalty Submissions – Respondents

[29] There is no requirement or obligations on the Respondents to submit penalty submissions. However, in circumstances where there is a reasonable explanation for a breach or mitigating circumstances, penalty submissions are helpful in enabling the Committee to evaluate the various issues that impact on penalty.

[30] On this occasion the Respondents were afforded the opportunity to submit submissions but elected not to do so.

REASON FOR PENALTY:

[31] A breach of r45.11 is generally dealt with by way of Minor Offence Notice (MIN) and penalties for such breaches are specified within the Sixth Schedule of the Master GRNZ Rules of Racing (effective 1 August 2018). The schedule provides for a first breach of the Rule within the 120-day reset period to be dealt with by way of a $100 fine; a second breach a $150 fine and a third breach may be either dealt with by a raceday Steward or he/she may lodge an Information and refer the matter to an RIB Adjudicative Committee in accordance with r62.3 (b).

[32] Whereas the fines for a first and second breach are prescribed within the MIN schedule, the penalty for a third breach (or more) is evaluated on a fact dependant basis taking into account a range of relevant factors.

[33] Relevant factors considered most relevant include:

a. the severity of the breach;

b. the Respondent’s level of culpability including the Respondent’s record of previous of breaches and any other aggravating factors;

c. the Respondent’s personal circumstances;

d. mitigating and aggravating factors;

e. for consistency the penalties that have been imposed in like cases; and

f. any impact the offending may have on the betting public and/or the integrity of Racing.

[34] The Committee has used these factors as the criteria for evaluating the penalty result in relation to these two charges.

Precedent Cases

[35] With regards to a fourth breach of this Rule a $300 fine is deemed an appropriate starting point. This was reinforced in the Appeal decision McInerney v RIU – 19 November 2019, where the Chair of the Appeal Tribunal Mr R G McKenzie stated at paragraphs 26 to 28 inclusive:

“The Judicial Committee in its decision on 25 May 2019 stated that a penalty consistent with penalties for a third or subsequent breach of a $300 fine was appropriate. We agree…….

……. The Tribunal notes that the Racing Integrity Unit Stewards submitted for a fine of $250 – $300 before the Judicial Committee and, further, Mr Quirk in his submissions on the Appeal submitted for a fine “in the range of $250-$300”. The Tribunal is satisfied that the penalty imposed by the Judicial Committee of a fine of $550 is manifestly excessive”.

[36] In addition to the precedent cases highlighted by the Applicant (refer paragraph 25), there have been other recent penalties imposed for fourth and fifth breaches which are worthy of mention; namely:

• RIB v L Cole (September 2021) 2 charges (4th and 5th Breach) fined $300 and $350

• RIB v K Lincoln-Papuni (August 2021) 2 charges (4th and 5th Breach) fined $300 and $350

Charge 1 (Information Number A11027)

[37] This charge is the Respondents fourth breach of the Rule within the reset 120-day reset period. However, overall, the Respondents record under this Rule is poor – see paragraph 43 for further comment on this aspect.

[38] The Applicant has suggested that a fine of $300 would be an appropriate starting point. In support of this, the Applicant referred the Committee to various recent precedent decisions.

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

[40] 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.

[41] The weight variance was 2.1 kg as opposed to the 1.5 kg permitted by the Rule.

[42] 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 A11031)

[43] This charge represents a fifth breach within the reset period. However, as indicated at paragraph 31 the Respondents overall record under the Rule is poor. Since March 2021 the Respondents have breached the Rule on seven occasions, inclusive of these two breaches. Of particular concern is that the breach prior to these two charges was a month ago and the Respondents were fined $350. It appears that the fines do not have the desired deterrent effect.

[44] In his submission the Applicant referred the Committee to the 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 resulting in a $100 uplift from the $400 starting point. In this case the status or stakes payable are not applicable.

[45] 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 may have impacted on HARDCORE SPARTEN’s performance as it finished 18.9 L from the winner in last place.

• The Respondent’s overall poor record is an aggravating factor.

[46] Whereas for a fourth breach a $300 starting point is the norm, an uplift of $100 for a fifth breach is deemed necessary. This is to ensure the penalty is meaningful; the Respondent is held to account, and it must also operate as a deterrent.

[47] On that basis the starting point for this fifth breach is set at $400.

[48] This starting is consistent with recent cases involving a fifth breach i.e., RIU v Cole (June 2021), RIB v Lincoln-Papuni (August 2021) and RIB v Cole (September 2021).

[49] The Committee has applied a further $50 uplift due to the Respondent’s overall poor record. Balanced against that the Committee has had due for the aggregated result of both fines. As a consequence, consistent with the cases referred to above at paragraph 43; and to ensure the aggregation of the fines when combined are not out of proportion to the Respondent’s overall offending the Committee has applied a $50 discount to the $450. 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.

[50] Therefore, after consideration of all the factors the Committee is satisfied that a fine of $400 is deemed reasonable and proportionate under the circumstances in relation to Charge 2.

CONCLUSIONS:

[51] In relation to Charge 1, the fourth breach of the Rule, the Training Partnership of Mr Trent Agent and Ms Kimberly Williams is fined $300.

[52] In relation to Charge 2, the fifth breach of the Rule, the Training Partnership of Mr Trent Agent and Ms Kimberly Williams is fined $400.

Costs

[53] Because this matter was dealt with ‘on the papers’ pursuant to paragraph 21.1 of the Common Rules of Practice and Procedure there will be no order as to costs.

G R Jones
Chair