Non Raceday Inquiry – Written Decision dated 4 March 2022 – Gary Fredrickson

EVIDENCE:

Introduction

[1] This penalty decision deals with an admitted breach of Rule 62.1(o) by Licensed Greyhound Trainer, Mr Gary Fredrickson (hereafter referred to as the “the Respondent”).  The breach is alleged to have occurred at the Palmerston North Greyhound (GRC), prior to the running of Race 3 on 11 February 2022.

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 Number A10910, the summary of facts and penalty submissions.

The Charge

[4] Information Number A10910 alleges that in relation to Race 3 at the Palmerston North GRC on 11 February 2022:

The Respondent did an improper act by attempting to covertly wipe the vulva of ROCK ON ANNIE prior to walking the greyhound out into the main kennels for race 3 to potentially hide that the bitch was in season .

The Rules

[5] The relevant Rules are as follows:

Rule 62.1(o) provides that: has, in relation to a Greyhound or Greyhound racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct;

Rule 44.19 provides that: When a Greyhound is presented in accordance with Rule 44 the Steward(s) shall cause the Greyhound to be examined by an officiating Veterinarian or Authorised Person in order to determine that the Greyhound is fit to compete and, in the case of the Greyhound being a bitch, is not In Season. If in the opinion of the officiating Veterinarian or Authorised Person a Greyhound is In Season the Greyhound shall be withdrawn from the Race.

The Plea

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

Penalty Provisions

[7] The relevant Rules are as follows:

Rule 63.1 provides that: Any Person found guilty of an Offence under these Rules shall be liable to: (a) a fine not exceeding $10,000.00 for any one (1) Offence except a luring/baiting Offence under Rule 86; and/or

(b) Suspension; and/or

(c) Disqualification; and/or

(d) Warning Off.

With regards to fines-imposed Rule 63.3 provides that : Unless the Board otherwise permits, a fine imposed under these Rules shall be paid to the Board within fourteen (14) days of the date upon which the Person fined is notified of the Penalty imposed upon him/her.

Summary of Facts

The facts relevant to the breach are outlined below.  They are agreed by both the Applicant and Respondent.

[8] The Respondent Mr Fredrickson is, and was at all relevant times, a Public Trainer (in partnership with Mrs Sandra Fredrickson), Breeder and Litter Master licenced by Greyhound Racing New Zealand(“GRNZ”) and as such are a person bound by the Rules of GRNZ.

[9] On 11 February 2022, the Respondent and training partner Mrs Fredrickson had the bitch ‘ROCK ON ANNIE’ engaged to race in Race 3, The “Creative Catering Feature” racing for a stake of $7,100.00 at the Palmerston North Greyhound Racing Club’s Premier meeting held at Manawatu Raceway.

[10] The Respondent was the person in control, and the handler of ROCK ON ANNIE for this race.

[11] After retrieving ROCK ON ANNIE from her race kennel and prior to walking her out into the main Kennel, the Respondent attempted to covertly wipe the vulva area to potentially hide that the bitch was In Season. This was witnessed by Kennel Security Guard who immediately informed Stewards.

[12] Stewards then requested that ROCK ON ANNIE undergo a Veterinary examination by On Course Veterinarian Dr Kelly McDermott BVSc which found the bitch to be In Season and ROCK ON ANNIE was declared a late scratching (see at paragraph [24] the statement of Dr McDermott).

[13] When interviewed later that night regarding the reasons for wiping the vulva of ROCK ON ANNIE the Respondent  admitted that he had also wiped it prior to her initial pre – race Veterinary examination because he thought the greyhound was “dirty” in that area not that she was in season.

[14] When further questioned into the reason for again wiping the vulva area of ROCK ON ANNIE prior to exiting the race day kennel the Respondent repeated that he did not believe the greyhound was in season but used a paper tissue to wipe the area to see if there was discharge. This was done due to not being able to visibly see the area in the race day kennels.

Reason for Decision

[15] As the charge is admitted it is deemed to be proved.

Submissions for Penalty

Penalty Submission – Applicant

The Applicant Mr Wallis provided the following submissions in relation to penalty:

[16] Any breach of GRNZ Rules which involve an act which is deemed to be Improper needs to incur a penalty that will properly emphasise the accountability and denunciation principles to deter others from committing like breaches.

[17] The Respondent has committed an act which is Improper and in the process of doing so one which could have, had it not been identified, had the potential to deceive the betting public and have an adverse effect on other Greyhounds in the race. This goes to the heart of the code’s regulatory regime. For the public to have confidence in the integrity of Greyhound Racing and the welfare of the Greyhounds it is vital that those involved in the industry don’t conduct themselves in this manner.

[18] It is expected that licence holders will always act professionally and properly, this being a condition upon which a licence is granted. The Respondent’s actions on this occasion fall well short of that threshold.

[19] It is a mitigating factor that the Respondent has a good record for any Non-Race Day breaches of the Rules. It is further mitigated that he has expressed genuine remorse and contrition for his actions, and it must be noted that these actions are totally out of character. It is accepted that the Respondent made a bad judgement call on the night in question and has been forthright and professional towards Stewards while they were making enquiries. It must be further noted that the Respondent has admitted to the breach at the first opportunity.

[20] Any penalty must be fact dependent and reasonably proportionate to the breach and the offender. There have not, to this Steward’s knowledge, been precisely similar cases however other penalties imposed under GRNZ Rule 62.1(o) have incurred fines.

[21] The general penalties provided in Rule 63.1 may apply for such a breach and include a fine of up to $10,000, disqualification, suspension, warning off.

[22] The RIB submits that a fine will deter others from engaging in a similar act. As stated earlier there are no known penalties for similar breaches. After considering all mitigating factors it is submitted that a starting point of a fine of $1000 be recommended. It is also submitted that a portion of any imposed fine be suspended at the discretion of the Committee.

Penalty submission – Respondent

[23] The Respondent Mr Fredrickson provided the Committee with the following written statement, which the Committee has adopted as his submission in relation to the circumstances of his offending and in relation to penalty:

On the 11 February the day had gone as per normal in the morning, all dogs had their final vet check before 7.30 cut off time, this involves an inspection of their kennel for blood and the bitches have a wipe of the volva (usually with a finger) to check for blood, denoting a heat, nothing detected on any bitch racing that day.

We loaded the dogs into the track later that day and set off to the races, upon arriving at the races one by one the dogs were unloaded and toileted on the grass area, we have a ramp leading down from the truck, and when unloading ROCK ON ANNIE she went down the ramp in fount of me, I had a clear view of her rear end, and noticed some black dirtiness in the crease of her volva, I turned her around back into the truck and cleaned it off, it was very dark and in no way resembled blood, continued to toilet her, and kennelled her, at this stage the vet done an internal check of the dogs volva , where she found the dog to be clean, the dog was then kennelled.

After kennelling I rung my wife and said ROCK ON ANNIE was a little dirty, she relayed that she had just finished cleaning her kennel for her return and there was definitely no blood in her kennel, this gave me confidence that we didn’t have a bitch in heat.

I personally retrieved ROCK ON ANNIE for her race, got her out and inspected her kennel, the mat she was on and wood and metal surrounds were clear of blood, further enforcing her state, at this time I did with a white piece of paper in my pocket, dab her volva to check for any discharge, I was really happy with the result, as the paper was clean, but this in hind sight this was very poor judgment on my behalf, I should never have touched the dog in that way before racing her, especially in the kennel block.

This action was brought to the stipendiary stewards attention, at this point I was asked to represent the dog to the vet, she examined the dog and like me said there was some dark matter in her volva , she asked someone to get her a white cloth to confirm what she was seeing, her words were “I’m not sure if this is blood or just dark urine” she said there is something there she could not rule out a heat, so scratched to dog, I did not disagree because I could see the vet was in a uncomfortable situation and I did not want to make it worse for her.

Summary

I did not bring a bitch to the races actively in heat, to knowingly try and deceive racing integrity. The bitch was on the contraceptive pill, so should not have been having a heat. I showed very poor judgment in the kennel block.

I had dogs likes of AGENT LEVI in the truck, he has a history of a wayward mind in relation to racing and girl dogs, there is no way I would risk putting a bitch on heat in a closed confined area with him and the likes of HE’S ALI before racing, an absolute recipe for disaster.

We have an outstanding record in relation to dogs on heat, never having a dog late scratched at the races, discharging blood, found to be on heat, in seven years of training, we just leave them at home, and this has happened in the past where we have late scratched the likes of BIGTIME RANSOME and BIGTIME RAPID, just two name two , due to finding blood in their kennels after the 7.30 cut off for scratching’s.

We have only ever in seven years of training greyhounds had a racing infringement, that was a weight fine at Cambridge on 4/5/17 BIGTIME SPIRIT.

We are comfortable financially, and never have to rush dogs back from injury or try and deceive people to gain starts, this is simply a case of me thinking ROCK ON ANNIE was no wear near compromised to consider late scratching her from her event. as trainers we make these decisions every week in relation to racing dogs, with the likes of a small bruises, broken nail, recovering from illness etc., a lot of the time things with these dogs in relation to presenting them to race is not cut and dry, as trainers we are always making these types of calls, weather they are fit to race or not and I do stand by my decision to race ROCK ON ANNIE believing she was not on heat.

Submission of On Course Veterinarian (Dr McDermott)

[24] As alluded to at paragraph 12, the On Course Veterinarian, Kelly McDermott, BVSc provided a written statement as to her observations following her pre-race examination of ROCK ON ANNIE.

Regarding an incident at the Manawatu raceway on the 11 Feb 2022 involving Gary Fredrickson and ROCK ON ANNIE, below is a personal account of what happened.

Kennelling commenced as per normal with all dogs checked for minor injuries or illnesses, including all bitches being checked for being in season. On this day at kennelling time, ROCK ON ANNIE was deemed fit for racing. However, prior to the race happening, I was asked to inspect her again as it was thought that she may be in season. On this second inspection, ROCK ON ANNIE had a bit of dark coloured debris around her vulva. Although she did not have swelling or any obvious frank blood, there was a slight red tinge to the tissue swab after cleaning her vulva. It was difficult to tell if (ROCK ON) ANNIE was truly in heat or not, but in lieu of animal safety and welfare, the decision was made to scratch her based on the assumption that she was just beginning.

Mr Fredrickson expressed surprise and mentioned that ROCK ON ANNIE is on the pill. He briefly discussed with me that he would not knowingly bring a bitch in heat to the track as the close confinement in the truck would upset his male dog.

REASON FOR PENALTY:

[25] The Respondent has admitted one charge that he did an improper act by attempting to covertly wipe the vulva of ROCK ON ANNIE prior to walking the greyhound out into the main kennels to potentially hide that the bitch was in season.  Because he has admitted the charge it is therefore deemed to be proved.

[26] In determination of penalty the following factors are considered by the Committee to be relevant:

1. the severity of the breach;
2. the Respondent’s level of culpability including the Respondent’s record of previous of breaches.
3. the Respondent’s personal circumstances;
4. mitigating and aggravating factors;
5. for consistency the penalties that have been imposed in like cases; and
6. any impact the offending may have on the betting public and/or the integrity of Racing.

[27] In addition the Committee is mindful that the penalty to be imposed must be fair and proportionate.  The penalty must also strike an appropriate balance between holding the Respondent to account as well as deterring him and others from similar future offending.

[28] The Committee has carefully evaluated the various submissions.  These have been particularly helpful and include detailed comments from the Applicant, the Respondent and Dr McDermott.

Severity of the breach and culpability

[29] Based on the evidence presented, particularly that of the Course Veterinarian, Dr McDermott, the Committee accepts that it cannot be established that ROCK ON ANNIE was in season, but quite rightly under the circumstances, was withdrawn from the race on the basis of animal safety and welfare concerns (ref. para 24).

[30] The Committee also accepts that the Respondent did take reasonable steps to determine if ROCK ON ANNIE was in season (ref. para 23), however, in terms of the ingredients of the offence (as outlined in the charge) it is not necessary to prove or establish that ROCK ON ANNIE was or was not in season.  What is relevant is the Respondents act of attempting to covertly wipe the vulva area to hide the fact that the bitch was in season, or potentially coming into season.

[31] The act which is clearly improper under the Rules has been admitted by the Respondent. He has described his actions as a lack of judgement – evidenced by his comments (at para 24) in which he said in hind sight this was very poor judgment on my behalf, I should never have touched the dog in that way before racing her, especially in the kennel block. It is an act that the Committee is sure the Respondent will reflect and appreciate that to a casual observer an inference could reasonably be drawn that the reason for wiping ROCK ON ANNIE was to avoid detection.  And  but for the observations and due diligence of the Kennel Security Guard, and the resultant examination of Dr McDermott the breach could have very well have gone undetected.

[32] The Committee agrees with the Applicant’s submission that ROCK ON ANNIE may have taken her place in the field. And had this occurred it may have resulted in adverse consequences for other Greyhounds which inevitably could have impacted on the public’s perception and / or confidence in Greyhound Racing.

[33] Taking these matters into account the Committee has assessed the seriousness of the breach to be slightly below mid-range and the Respondent’s level of culpability to be at the mid-point.

Aggravating factors

[34] This breach could have been avoided had the Respondent simply raised any concerns he may have had with Stewards prior to the start rather than second guessing whether or not ROCK ON ANNIE was in season. By not self-reporting he could have placed his greyhound and potentially others at risk, albeit it could not be established ROCK ON ANNIE was in season.

Mitigating factors

[35] The Respondent has a very good record.

[36] He has expressed genuine remorse and contrition for his actions, and it was submitted by the Applicant that his actions were totally out of character.

[37] It is accepted by the Committee that the breach was the result of poor judgement and poor decision making as opposed to an intent to deceive; albeit his actions could be perceived otherwise.

[38] The Respondent admitted the breach at the first available opportunity and agreed to have the charge dealt with ‘on the papers’ thus reducing costs.

Precedent cases

[39] In terms of the factual circumstances of this breach there are no precedent cases upon which any guidance can be drawn or referenced. However, the Applicant advised that other cases under GRNZ Rule 62.1(o) have resulted fines.

The penalty decision

[40] The Applicant submitted that a fine with a starting point of $1000 would be appropriate in this case.  The Applicant further recommended that a portion of any imposed fine be suspended at the discretion of the Committee.

[41] The Respondent did not specifically propose a penalty but he did highlight the fact that he has a very good record and was comfortable financially, an indicator, perhaps, that he is in a position to pay a fine.

[42] Rule 66.11 provides that: On finding an Offence proved the  Committee may impose any penalty and/or affect any remedy provided by these Rules. In imposing a Penalty or affecting any remedy provided in these Rules, the Committee, may have regard to such matters as it considers appropriate and, in imposing any Penalty, may order that the whole or any part of any fine imposed be paid to any person it thinks fit. Accordingly, under the circumstances of this case a fine, as opposed to suspension or disqualification is deemed to be an appropriate penalty.

[43] The Applicant has recommended that part of any fine imposed be suspended.  Whereas some overseas Greyhound Racing jurisdictions (i.e., r95.3 GRV Rules of Racing) offer a suspended sentence as part of their sentencing regime; a suspended sentence is not explicitly covered within the Penalty Section of Greyhound NZ Rules or Regulations or within the Seventh Schedule which relates to duties of an Adjudicative Committee.  Within Harness and Thoroughbred Codes there is an ability to issue a suspended sentence.  Such sentences are more likely to be used in relation to drug offending where it is entirely appropriate to impose rehabilitation measures in lieu of a lengthy suspension or disqualification.

[44] In In RIU V M Hamilton (11 July 2016), a Thoroughbred decision, part of the penalty was suspended by issuing a ‘good behaviour bond’ with specific conditions to be met. This was issued as an incentive to encourage Mr Hamilton not to reoffend.

[45] In RIU V Weir (29 June 2018), a misconduct charge, the RIU sought a $1500 fine plus a 3-month suspension of Mr Weir’s GRNZ Trainer’s Licence, suspended for 12 months. In Response the Judicial Committee considered that Weir’s offending was of a sufficient degree to require a combined fine and ‘suspended’ period of suspension.

[46] The circumstances of this matter are quite different to Hamilton and Weir but they do demonstrate that under certain conditions an Adjudicative Committee may, in the right circumstances, give some consideration to a suspended sentence.  In this case the Committee does not believe the Respondent requires any incentive to not reoffend.  He has a good record; he is said to be of good character;  there is no indication that he is likely to reoffend and even if in its discretion the Committee considered that a part suspended fine was appropriate there are few if any meaningful pre-conditions that could be imposed on the Respondent to deter him from reoffending.

[47] The Committee agrees that a fine in the vicinity of $1000 is an appropriate starting point.  The aggravating factors are not sufficiently compelling to justify an uplift from the starting point.  However, there are mitigating factors (ref. para’s 34 to 37) that merit a $200 (20%) reduction from the starting point.

[48] Therefore, after consideration of all the factors the Committee is satisfied that a fine of $800 is both reasonable and proportionate under the circumstances.

CONCLUSIONS:

[49] In relation to the charge (Information A10910), the Respondent Mr Fredrickson is fined $800.

Costs

[50] 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.