Non Raceday Inquiry – Written Decision dated 30 July 2024 – Joshua Lane

The Respondent, Mr Josh Lane, is charged under r 141 of the NZGRA Rules.

Information A16937 reads: “On the 14th of June 2024 at Addington Raceway, Joshua Matthew Lane, the Licensed Trainer of GO RUBY, failed to present the Greyhound to compete in Race 5 at the Christchurch GRC meeting, free of the Prohibited Substance Arsenic at a level of >1600ng/mL, being over the threshold of 800ng/mL, and being an offence under the provisions of r 141(1)(a) and 141(4) and subject to penalty pursuant to r 174 of the NZGRA Rules.”

The Respondent has admitted the breach of r 141(1)(a) and has accepted the Summary of Facts.

Both parties agree that the matter can be determined on the papers.

Rule 141 provides:

(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.

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

(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.

The penalty provision is r 174:

(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 r 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 part or portion of a penalty imposed may be suspended for a time and pursuant to conditions that an Adjudicative Committee thinks fit

Per the GRNZ Categories of Prohibited Substances, Arsenic is included in Category 4 – All other substances that have the ability to improve or impact the performance of a greyhound which lists a penalty starting point of 6 months’ disqualification and/or a fine of $5,000.

Summary of Facts

1. The Respondent Joshua Lane is the holder of an Owner/Trainers Licence issued by New Zealand Greyhound Racing (GRNZ). He is 30 years old and has held a Trainer’s Licence since 2012, initially in Partnership for five years and as an Owner/Trainer since 2018.
2. GRNZ introduced new Prohibited Substance Rules, including Arsenic (800ng/mL) and Cobalt thresholds, on 1 October 2021. The changes were published by way of an advisory to participants on the GRNZ website and in the August 2021 ‘On Track’ magazine.
3. On 14 June 2024 the Greyhound GO RUBY won Race 5 – the Bolty@Stud Sprint PBD – at the Christchurch Greyhound Racing Club meeting at Addington Raceway.
4. At the time of the race GO RUBY was a 3yo old bitch, owned by Opawa Racing & J Lane and trained by Mr Lane. The Greyhound won a stake of $1,320.
5. GO RUBY was post-race swabbed (#190082) and on 3 July the Eurofins ELS Limited laboratory issued an Analytical Report detailing the sample had screened with an Arsenic level of 1400 micrograms per litre of urine (ug/L).
6. The sample and control were sent by NZ Racing Laboratory Services to Racing Analytical Services Ltd (RASL) in Melbourne, Australia for the purpose of a confirmatory analysis.
7. 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 per the GRNZ Prohibited Substance Regulations when present in a sample at concentrations above that which would naturally occur through routine nutritional sources (800 ng/mL).
8. On 9 July investigators went to the training kennels where GO RUBY was domiciled at the time of the race. It was evident by the marks on the wood and the wood chips on the floor that a significant amount of its plywood housing and some tanalised fencing timber had been chewed.
9. Mr Lane had removed GO RUBY from these kennels and relocated to another property prior to being advised of the positive swab.
10. On 10 July Mr Lane was interviewed at his training kennels in Ashley and advised of the initial screening Arsenic result.
11. He explained that GO RUBY was a “chewer”.
12. Treated pine timber is known by Investigators to contain Copper Chrome Arsenate (CCA), a wood preservative used to protect against rot and pests.
13. A urine sample was obtained from BIG TIME JELLY, Exhibit 194556, another Greyhound that had previously tested above average for Cobalt.
14. On 11 July a urine sample was obtained from GO RUBY, Exhibit 194557. We are awaiting results for the two Exhibit samples.
15. On 12 July RASL issued a confirmatory Certificate of Analysis detailing the Arsenic at a level of (greater than) >1600 ng/mL, being the upper limit of the calibration range used.
16. Inquiries revealed that other Lane trained Greyhounds have been Arsenic tested on nine occasions since the introduction of the threshold, with levels between 11-105 ug/L, considered in the normal range. A reading of 274 ug/L was returned by BIG TIME JELLY on 21 March 2024.
17. Recent positive cases in Greyhounds prompted GRNZ to post an advisory to all Trainers via their website on 23 December 2023 and 1 May 2024:

Caution re Arsenic. Over the past year, there have been instances where greyhounds have been found to have high urinary arsenic levels in their systems, with the probable cause attributed to treated timber, which the greyhounds have been constantly licking or chewing. These cases highlight the fact that kennels made of treated timber could, through greyhounds chewing or licking them, cause elevated urinary arsenic levels. Trainers are advised to be cautious about this, especially if they have greyhounds who are more prone to chewing or licking.

18. Mr Lane stated that he was aware of the advisory but had not read it.
19. It is highly probable that the level of Arsenic detected in GO RUBY is due to the dog chewing treated timber.
20. Mr Lane is liable under r 141(1)(a) of the Rules of GRNZ, failing to ensure the Greyhound raced free from a Prohibited Substance.
21. The RIB seeks disqualification of GO RUBY from the race concerned pursuant to r 141(1) and (4).
22. Mr Lane has no previous breaches of the Prohibited Substance Rule in his years as a Licensed Trainer.

Decision

The charge has been admitted; it is found proved.

Informant’s Penalty Submissions

The Informant commenced their penalty submissions with reference to the sentencing principles of accountability, deterrence, denunciation and rehabilitation.

Three cases since the introduction of the 2021 Arsenic threshold were said to be comparable:

RIB v Watson (3 April 2023) — Trainer charged with a breach of the threshold (1158ng/mL) under the old r 61.1 and penalty provisions. The source of the high level was believed to be from the Greyhound licking the recently stained, CCA treated, wooden kennel floor. Watson was fined $1,000.

RIB v Clark (19 December 2023) — two breaches of the threshold from the same Greyhound, with levels of 908ng/mL and >1600ng/mL. The probable cause was also from the Greyhound chewing CCA treated timber. Clark was fined $800, all of which was suspended for 12 months.

RIB v Johnson (3 April 2024) — Trainer charged with a breach of the threshold (>1600) under r 140(1)(a) and penalty provisions. The source of the high level was also believed to be from the Greyhound chewing wood. Johnson was fined $1000 with the penalty suspended for 12 months.

As a result of the first two cases, GRNZ posted an advisory on their website on 23 December 2023. It is unknown when the advisory was taken down but another ‘reminder’ was posted recently on 1 May 2024. It is also unknown whether GRNZ notified Trainers via email. Mr Lane stated that he was aware of the advisory on the website but had not read it. He also stated that he was aware of the circumstances of the three other cases.

Although Mr Lane was aware that GO RUBY was chewing the wood in the kennel, he was of the opinion at the time that it was not that serious. The Greyhound had only been in the kennel where the chewing occurred for a couple of weeks.

Mr Lane is a very experienced Trainer and is aware of the previous charges against the other Trainers.

Mr Lane has admitted the charge at the earliest opportunity and has been co-operative and respectful with RIB staff throughout the process. He has no prior NRI charges under this Rule in his training career.

The RIB concluded their submissions by stating that it was highly likely that the source of the threshold breach was from the CCA treated timber located in the kennel in which GO RUBY was housed. As the Trainer, Mr Lane has a strict liability to ensure that his Registered Greyhounds are free from Prohibited Substances at all times.

The RIB submitted that a $1,000 fine was appropriate, with the penalty wholly suspended for a period of 12 months. If a second relevant offence against GRNZ r 141(1) was to occur during the 12-month period, the $1,000 fine would be activated.

Respondent’s Submissions

The Respondent, despite being afforded the opportunity to make written or oral submissions, has not done so. However, he has confirmed that he admits the charge and accepts the Summary of Facts.

Decision

It is clear that the reason for the positive result to Arsenic from an analysis of the post-race sample, was the result of GO RUBY chewing CCA treated wood in the kennel. As the Summary of Facts states: “A significant amount of its plywood housing and some tanalised fencing timber had been chewed.”

Mr Lane told the Racecourse Inspector that he was aware of the advisory on the GRNZ website but had not read it. He also stated that he was aware of the circumstances of the other three cases.

Although Mr Lane was aware that GO RUBY was chewing the treated wood, he was of the opinion at the time that it was not an issue as the Greyhound had only been in the kennel where the chewing occurred for a couple of weeks.

The principal aggravating factor is that given GO RUBY’s propensity for chewing and in the light of Mr Lane’s awareness that Arsenic positives had been returned, he ought to have been concerned enough to take preventive action. In addition, as a Licensed Trainer, he had an obligation not only to be aware of the advisory issued by GRNZ on 23 December 2023 and the follow up on 1 May 2024, but also to read them and acquaint himself with their contents. This case, as were the previous positives, is a salutary warning to all Industry participants of the need to keep abreast of such matters.

Mitigating factors are the Respondent’s early admission of the breach, his clear record, and his co-operation with the RIB investigation. It is accepted that the likelihood of Mr Lane reoffending in similar fashion is low. His changing kennels will no doubt assist in this regard.

In addition to the starting point in the Categories of Prohibited Substances, the decisions in Clark and Johnson are helpful guides in deciding penalty in this case. The facts of the cases are similar. In Clark, the Adjudicative Committee assessed the offending to be low-level and determined that a suspended fine of $800 was appropriate; in Johnson the suspended fine was $1,000.

Since the introduction of the new Rules as from 1 February 2023, an Adjudicative Committee has the power to suspend any part or portion of a penalty for a time and pursuant to conditions that it thinks fit. The Adjudicative Committees in both Clark and Johnson saw fit to avail themselves of this provision, finding that the breach did not require a punitive penalty. The Adjudicative Committee in Johnson approved the comment Clark that “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.”

The Racecourse Inspector, Mrs Williams, has submitted that a similar approach be followed in this case, and that a fine of $1,000, suspended for 12 months, as in Johnson, is appropriate. Mr Lane is, arguably, more culpable than in Clark and Johnson as he was aware of the advisory in December 2023 and the three Arsenic cases that preceded his breach and was remiss, if not negligent, in not taking preventive measures.

This Adjudicative Committee has considered whether the time for an educative approach has passed. It is apparent that the message is not always being heeded and full suspension of the fine may not be acting as the necessary deterrent.

This notwithstanding, the Informant has sought full suspension in this case, and, with some hesitation, the Adjudicative Committee has determined that a fully suspended fine of $1,000 is appropriate. More particularly, this fine will be suspended for a period of 12 months, pursuant to r 174(3), on the condition that the Respondent does not commit any further breach of the Rules of GRNZ within that period, other than a minor Raceday incident dealt with under the Minor Infringement Scheme, in which case the fine will immediately become payable.

Whether full suspension of any fine is appropriate in a further case is a matter for future Adjudicative Committees of course, but this case should be a warning to Industry participants that the advisories must be read and adopted and, if not, an immediate financial penalty is a likely penalty.

Disqualification

GO RUBY is disqualified from her 1st placing in Race 5, the Bolty@Stud Sprint PBD, at the Christchurch GRC meeting at Addington on 14 June 2024 pursuant to r 141(4).

The amended result of the race is as follows:

1ST    GOLDSTAR AUTUMN

2ND   GO HOPPY

3RD   HOMEBUSH MEGAN

4TH   GOLDSTAR TRUDY

Stakes are to be paid accordingly. If the winning stake has been paid to the connections of GO RUBY, it is to be repaid to GRNZ.

Costs

The RIB did not seek costs and as the matter was heard on the papers there are no adjudicative costs.