Non Raceday Inquiry – Written Decision dated 28 February 2022 – John McInerney

EVIDENCE:

Introduction

[1] This is the penalty decision arising from Information Number A16033 filed against Licenced Greyhound Trainer Mr John McInerney (hereafter referred to as “the Respondent”). The charge relates to the Respondent presenting AMURI ANDY to race down 1.6 kgs from its previous recorded weight in Race 2 at the meeting conducted by the Southland Greyhound Club on 22 February 2022 (further particulars relating to the charge are outlined in paragraph [4]).

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 Number A16033, the summary of facts and the penalty submissions filed by the Applicant. The Respondent elected not to provide penalty submissions.

The Charge

[4] Information Number A16033 alleges:

THAT on 22 February the Respondent presented AMURI ANDY down 1.6 kgs from its previous recorded weight.  This being your 4^th breach inside the reset period of 120 days.

[5] On the basis that this is the fourth breach of Rule 45.11 within the previous 120 days, the breach was referred to an Adjudicative Committee by Stewards pursuant to Rule 62.3 (b) for a penalty decision.

The Rules

The relevant Rules are as follows:

[6] 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.

[7] 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.

[8] 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 Plea

[9] The charge is admitted by the Respondent and the Information has been endorsed accordingly.

SUMMARY OF FACTS:

[10] The Respondent is a Licenced Trainer under the Rules of Greyhound Racing New Zealand (GRNZ).

[11] The Respondent has admitted the charge alleging that he presented AMURI ANDY to race down 1.6 kgs from its previous recorded weight in Race 2 at the meeting conducted by the Southland Greyhound Club on 22 February 2022.

[12] The charge is the Respondent’s fourth breach (within the 120 days reset period). Previous breaches include:

4th – AMURI ANDY – Southland 22-2-22

3rd – MR MUPPET – Addington 8-2-22

2nd – HOMEBUSH NUGGET – Southland 12-1-21

1st –  HOMEBUSH SHOWOFF – Palmerston North 1-11-21

[13] A breach of Rule 45.11 is generally dealt with by way of a Minor Infringement Notice for the first three breaches.

[14] On the fourth breach an Information is completed and submitted to an Adjudicative Committee for consideration. Breach one receives a Minor Infringement Notice and a fine of $100. Breach two within 120 days receives a Minor Infringement and a fine of $150, while breach three receives a Minor Infringement and a fine of $150.

REASONS FOR DECISION:

[15] As the charge is admitted by the Respondent, it is deemed proved.

Submissions for Penalty – Applicant

Mr Wallis provided the following submissions:

[16] 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 submission on this occasion.

Precedents

[17] The following precedents are relevant for this case.

• 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, 13 June 2021, fourth breach, fined $350.
• RIB v Agent/Williams, 11 July 2021, fourth breach fined $300.
• RIB v Agent/Williams, 4 August 2021, fourth breach fined $350.
• RIB v Agent/Williams, 3 September 2021, fourth breach fined $300.
• RIB v L Cole, 3 September 2021, fourth breach fined $300.
• RIB v J McCook, 7 September 2021, fourth breach fined $300.
• RIB v Agent Williams, 10 November 2021, fourth breach fined $400.

[18] In conclusion, the RIB submits a $300 fine is the suggested starting point in this instance.

Penalty submissions – Respondents

[19] There is no requirement or obligation on the Respondent to submit a penalty submission, and on this occasion the Respondent elected not to do so.

REASON FOR PENALTY:

[20] A breach of Rule 45.11 is generally dealt with by way of a Minor Offence Notice (MIN) and penalties for such breaches are specified within the Seventh Schedule of the Master GRNZ Rules of Racing (effective 1 October 2021). The schedule provides that a first breach of the Rule within the 120-day reset period is liable to a $100 fine; a second breach a $150 fine and a third breach may be dealt with by either referral to an RIB Adjudicative Committee or at the discretion of Stewards they may impose a further fine, in accordance with r62.3 (b) – refer paragraphs (5) and (9).

[21] Whereas the penalty for a first and second breach is prescribed within the MIN schedule, the penalty for a third breach (or more) is evaluated on a fact dependent basis. Factors considered most relevant include (1) the severity of the breach; (2) the Respondent’s level of culpability; (3) the Respondent’s personal circumstances including their record of past breaches; (4) for consistency the penalties that have been imposed in like cases; and [5) any impact the offending may have on the betting public and/or the integrity of Racing. On that basis this Committee has used these criteria as its decision-making framework to evaluate the penalty outcome of this charge.

Precedent cases

[22] In his submission the Applicant referred to nine recent precedent cases relating to a fourth breach of this Rule (refer para 19). All four cases have some relevance to this matter and therefore are useful for benchmarking purposes in that they establish and confirm that for a fourth breach a $300 fine is an appropriate starting point.

[23] The Respondent will be well aware of the Appeal decision McInerney v RIU (19 November 2019), where it was reinforced in the absence of any compelling aggravating factors that a $300 fine is deemed appropriate for a fourth breach.  The Tribunal upheld the Appeal and the fine of $550 imposed by the Judicial Committee was quashed and a fine of $300 imposed which is now accepted as the norm.

[24] On that basis the starting point for this fourth breach is set at $300 with appropriate allowances made for aggravating and mitigating factors as outlined below.

Aggravating factors

[25] As has been highlighted at paragraph 17, in the past 2 years, the Respondent has been dealt with in relation two previous (fourth breach) charges. The first resulting in a $300 fine and the second a $300 fine, which was reduced from $550 on Appeal.  This on the face of it could be viewed as a poor record, however, this must be balanced against the fact that the Respondent runs one of the largest kennels in New Zealand; he races dogs in both Islands and on a starter per (r45.11) breach basis his record, on this occasion, can rightly be treated as a neutral factor. Accordingly, there are no compelling aggravating factors.

Mitigating factors

[26] Although the Respondent admitted the breach at the first available opportunity, limited credit can be given as there is no suggestion the weight variance was attributed to faulty scales or some other contributory factor.

[27] The Respondent agreed to have the charges dealt with on the papers, thus reducing the need for a costly and time-consuming hearing.

[28] The weight variance was only slightly more than that permitted by the Rule, thus placing the severity of the breach in the lower range.

CONCLUSIONS:

[29] After thoughtful deliberation and taking account of the factors outlined above, a fine of $300 is deemed sufficient and fair under the circumstances of this case.

[30] Accordingly, a fine of $300 is imposed.

Costs

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

G R Jones
Chair