Non Raceday Inquiry – Written Decision dated 28 September 2021 – John McInerney

EVIDENCE:

Introduction

[1] This penalty decision deals with two Information’s filed against the Licenced Greyhound Trainer Mr John McInerney (hereafter referred to as the “the Respondent”) alleging breaches of Rule 40.1. Both charges relate to Race 11 at the meeting conducted by the Wanganui Greyhound Club, on 22 September 2021. Both charges were admitted by the Respondent.

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 examined relevant documents including Information Numbers A11032, A11033, the summary of facts and penalty submissions.

The Charges

[4] Charge 1 – Information Number A11032 alleges that in relation to Race 11 at the Wanganui GRC on 22 September 2021:

The Respondent failed to scratch HOMEBUSH VASSY by 7.30am thus constituting a late scratching, with no reserved dog denied a start (4th Offence). An alleged breach of Rule 40.1 of the New Zealand Greyhound Racing Association Rules.

[5] Charge 2 – Information Number A11033 alleges that in relation to Race 11 at the Wanganui GRC on 22 September 2021:

The Respondent failed to scratch PUNCH ON SCOOBY by 7.30am thus constituting a late scratching, with no reserved dog denied a start (5th Offence). An alleged breach of Rule 40.1 of the New Zealand Greyhound Racing Association Rules.

[6] Charge 1 is the Kennel’s fourth breach of the Rule within the previous 120 days and Charge 2 is the Kennel’s fifth breach of the Rule within the previous 120 days. However, it must be said from the outset that the previous three breaches occurred on the same day and the circumstances of the combined, five breaches, are identical.

The Rules

[7] The relevant Rules are as follows:

Rule 40.1 provides that – The Nominator of any Greyhound which, in accordance with these Rules, is to be withdrawn from a Race, shall notify the secretary of the Club for which such Greyhound is to be withdrawn of such withdrawal not later than 7.30am on the day of the Meeting.

[8] The two breaches have been referred to an Adjudicative Committee by Stewards pursuant to 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] Both charges are admitted by the Respondent and the Information’s have been endorsed accordingly by S (Sammy) Stone on behalf of the Respondent.

Summary of Facts

[10] The Applicant advised that while travelling to the Wanganui GRC meeting at Hatrick Raceway, at 8.03 am on Wednesday 22 September 2021 he received phone advice from the Respondent’s Central Districts Kennel representative, Stephen McInerney that he had slept through his alarm and had forgotten to scratch “about four” runners from the meeting. This advice was given approximately 33 minutes after scratching time.

[11] Mr S McInerney was told to contact the Wanganui GRC Secretary to scratch the Greyhounds. He was also told there would more than likely be charges laid as a result.

[12] It transpired that there were, in fact, five late scratchings. The first three i.e., MITCHAM OCEAN (Race 9 – first offence), BOUND UP (Race 9 – second offence), and MITCHAM LIAM (Race 10 – third offence) were all dealt with by way of Minor Infringement Notices (MIN) with each receiving a $150 fine as per the Minor Infringement table.

[13] The final two offences relate to HOMEBUSH VASSY (Race 11 – fourth offence, A11032) and PUNCH ON SCOOBY (Race 11 – fifth offence, A11033), which were referred to the Adjudicative Committee for determination as to penalty.

[14] It is important to note that there were no reserve runners denied a start in any of the races concerned.

Reason for Decision

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

Submissions for Penalty

Penalty Submissions – Applicant

The Applicant Mr Coppins provided the following submissions:

[16] All five breaches relate to Rule 40.1. Three have been dealt with by way of MIN’s.

[17] The three Minor Infringements were dealt as follows; MITCHAM OCEAN (first offence – $150 fine); BOUND UP (second offence – $150 fine); and MITCHAM LIAM (third offence – $150 fine) – as per Stewards discretion and the MIN Table.

[18] No reserve runners were denied a start.

[19] There are no relevant precedents for a fourth, or fifth breach of Rule 40.1. On that basis the Racing Integrity Board leave the determination of penalty up to the Chair of the Adjudicative Committee.

Penalty submissions – Respondent

The Respondent Mr McInerney provided the following submissions:

[20] My son Stephen McInerney is in charge of my satellite kennels in Foxton. He had worked on the dogs due to race on 22nd September until late at night on the evening of the 21 September and found a few major and some minor injuries.

[21] He slept through his alarm. And on the morning 22 of September he rung Stipendiary Steward, Keith Coppins at approximately 8am and scratched five of the 10 dog that were due to race.

[22] He has been fined $150.00 for three of the breaches each, a total of $450.

[23] The first three dogs were stood down for 28 Days.

[24] BOUND UP and MITCHAM LIAM were examined by the race day Vet and given 9 Days.

[25] We could have rung and late scratched with diarrhoea and received 14 Days stand down and no fine or simply taken all to the track and home. The vet check taken, and dogs would have got whatever the Vet felt needed, e.g., BOUND UP and MITCHAM LIAM 9 Days.

[26] The Vet agreed with my son’s diagnosis.

[27] To be fair, we could have been charged with negligence as all five dogs late scratched were all injured and could not race.

[28] No dogs were denied a start.

[29] Adding up the three $150 fines ($450) and then the possibility of further fines, for dogs four and five seems rather harsh for simply sleeping late.

REASON FOR PENALTY:

[30] A breach of Rule 40.1 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 the first and second breach of the Rule within the 120-day reset period to be dealt with by way of 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).

[31] Upon referral to an Adjudicative Committee the penalty is evaluated on a fact dependant basis taking into account a range of relevant factors.

[32] 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.

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

Precedent cases

[34] There is no precedent for a fourth or fifth breach of this Rule.

The decision

[35] Both charges represent the Respondent’s fourth and fifth breach of the Rule within the reset 120-day reset period.

[36] The Applicant has correctly identified that there is no precedent for a fourth or fifth breach of Rule 40.1 and on that basis submitted that the RIB will leave it up to the Committee to determine an appropriate penalty.

[37] The Respondent in his submission identified that as a result of the fines imposed for the first three breaches, he has already incurred penalties totalling $450. The Respondent set out a number of reasons for the late scratching’s including the fact that all five dogs were carrying injuries, which he said were verified by the course Vet. He also highlighted the fact that the reason for the failure to meet the 7.30 am scratching deadline was because “his son slept through his alarm”. The Respondent added that “the possibility of further fines, for dogs four and five seems rather harsh for simply sleeping late”.

[38] The Respondent raised the fact his son contacted Stipendiary Steward Mr Coppins shortly after 8 am to advise him of the scratchings. This, however, does not mitigate the breach. The Rule is very clear that scratchings must be notified to “the secretary of the Club for which such Greyhound is to be withdrawn…. not later than 7.30am on the day of the Meeting”.

[39] The mitigating and aggravating factors considered by the Committee are as follows:

• The Respondent admitted the breaches at the first available opportunity;
• The Respondent agreed to have the charges dealt with on the papers, thus reducing the need for a costly ‘in person’ hearing;
• The previous three breaches occurred on the same day and arose from the same set of circumstances;
• For that reason, these two breaches are deemed to be being part of a ‘continuing’ offence rather than the result of ‘repeat’ offending;
• No dogs were denied a start due to the late scratchings.

[40] For a first, second and third breach of this Rule (as per the MIN Table) a fine of $150 is the norm. And if the fourth and fifth were not part of the same circumstances that led to the first three breaches the Committee would look to impose (graduated) increased fines. However, because these breaches are deemed to be part of the one series of offending the Committee sees no reason to apply an uplift to the $150 fine as its starting point. Therefore $150 is the starting point adopted with respect to both charges.

[41] In addition, the Committee makes two further points. Firstly, the Committee has discretion when weighing up the various factors identified at paragraph 33, as applied in paragraph 40 in terms of penalty. Secondly, in the exercise of its discretion the Committee has had due regard for the aggregated result of the fines imposed for the first three breaches when consideration is given to the penalty to be applied to the fourth and fifth breaches. As a consequence, to ensure the aggregation of the fines when combined are not disproportionately severe the Committee has applied a $50 discount from the starting point in respect of each breach.

[42] The application of this ‘discount’ conforms with the ‘totality’ principle and is a one-off discount due to both fourth and fifth charges being combined and heard together, as well as the five breaches being the result of a single failure to scratch by the 7.30 am deadline.

[43] Therefore, after consideration of all the factors the Committee is satisfied that a fine of $100 for each offence is judged reasonable and proportionate under the circumstances.

CONCLUSIONS:

[44] In relation to Charge 1 (Information A11032), the fourth breach of the Rule, the Respondent is fined $100.

[45] In relation to Charge 2 (Information A11033), the fifth breach of the Rule, the Respondent is fined $100.

[46] These two penalties reflect the fact that the total fines incurred by the Respondent amount to $650.

Costs

[47] 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