Non Raceday Inquiry – Written Penalty Decision dated 27 May 2024 – Gordon Albert Lawrence

Introduction

[1]  This is the Penalty Decision arising from a charge filed against Licensed Greyhound Owner/Trainer Mr Gordon Albert (Arch) Lawrence (the “Respondent”).  The Respondent is the Trainer of ORSON BLONDE who, following analysis of a post-race test on 7 March 2024, returned a positive result for the Substance, Arsenic, which, when detected at a level above the allowable threshold of 800ng/mL, is deemed a Prohibited Substance.

[2]  These proceedings were commenced by the filing of an Information (the charging document) and the full particulars with regards to the charge are set out at paragraph (4) of this Decision.

Decision and Penalty

[3]  The Respondent admitted the charge and after evaluating the evidence and the penalty submissions, the Adjudicative Committee imposed the following penalty:

3.1  The Respondent Mr Lawrence is fined $1,000, of which the full amount is suspended for 12 months pursuant to Rule 174(3);

3.2  The Greyhound ORSON BLONDE is disqualified from the race concerned; and

3.3  There is no order for costs.

Disqualification of ORSON BLONDE

[4] Pursuant to Rules 141(4) and (5) the Greyhound ORSON BLONDE is disqualified from the race outlined in the charge as per Information A17981.  And any benefit derived or stakemoney must be forfeited. 

The Charge

[5]  The Racing Integrity Board (RIB) filed Information A17981 alleging:

THAT on 7 March 2024, Gordon Albert (Arch) LAWRENCE, Licensed Public Trainer, was the Trainer of the Greyhound ORSON BLONDE who competed in Race 5 at the Waikato Greyhound Racing Club Meeting, held at Cambridge GRC.  Mr LAWRENCE failed to present the Greyhound free of the Prohibited Substance, Arsenic, at a level of 982μg/L, being over the threshold of 800μg/L, Rule 141(1)(a) & 141(4) and subject  to penalty pursuant to Rule 174 of the NZGRA Rules.

[6] The charge was admitted by the Respondent and the Information endorsed accordingly. Once a charge is admitted, it is deemed to be proved.

The Rules

[7]  The relevant Rules are as follows:

Rule 141(1)(a) provides that:

(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.

(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.

Rule 174 establishes the Penalty Provisions:

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

Summary of Facts

The key salient facts are agreed and are summarised are as follows:

[8]  The  Respondent in this matter is 85 years of age and is the holder of an Owner/Trainer Licence issued by Greyhound Racing New Zealand (GRNZ). He currently owns five Greyhounds, with three presently registered for Greyhound Racing. The dogs are kennelled and trained from his Cambridge address.

[9]  The Respondent has been a Licenced Greyhound Trainer in excess of twenty years – probably much longer as GRNZ electronic licensing records only go back as far as August 2008.​

Circumstances of the offence

[10]  On 7 March 2024, the Waikato Greyhound Racing Club conducted a race meeting at the Cambridge GR Track, Cambridge. The  4-year-old Greyhound ORSON BLONDE, trained by the Respondent, was entered in Race 5 , the Teressa McDonald Memorial Cup Heat 1.

[11]  ORSON BLONDE placed second in the race, earning gross stake money of $1,380 and was post-race swabbed – a urine sample was obtained from her at 18:45 hours.

[12]  On 3 April 2024, New Zealand Racing Laboratory Services (NZRLS) issued a Certificate of Analysis detailing the sample that had been obtained from ORSON BLONDE had been analysed and had returned test results for the Prohibited Drug, Arsenic, at a level of 982 ng/mL, being over the threshold of 800ng/mL.

[13]  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.

[14]  An excessive amount of Arsenic has been shown to influence the cardiovascular system (GAR 1) and therefore is a Prohibited Substance when present in a sample at concentrations above that which would naturally occur through routine nutritional sources.

[15]  Arsenic at a level over 800ng/mL is a Prohibited Substance within the meaning of the Rules and its presence in a raceday sample at levels exceeding the threshold is, prima facie, a breach of the Rules.

[16]  On 17 April 2024 , Investigators from the RIB undertook enquiries at the Respondent’s kennels and training facility relating to the high Arsenic reading. Part of these enquiries included the interview of the Respondent, who had only recently returned from a family holiday. He was shocked and surprised at the elevated high Arsenic reading and confirmed that he had no answer to it, as ORSON BLONDE’S feed was no different to any of his other dogs.

[17]  He did however, confirm that ORSON BLONDE was a constant chewer, which was supported by the state of her kennel with a large number of wood shavings in her blanket  and a wooded support beam in the roof of her kennel having been completely chewed through.

[18]  The Respondent further advised that approximately two weeks prior to 7 March 2024 (late February), he replaced the wooden flooring in ORSON BLONDE’S kennel with a new sheet of plywood, which was cut to size.

[19]  The new plywood floor was varnished by the Respondent with the branded  product – Norski Polyurethane Clear Varnish, which he purchased locally through Mitre 10. The Respondent undertook this, post an RIB Kennel Audit of his premises that was undertaken on 18 October 2023.

[20]  In 2022, The Australian Greyhound Welfare and Integrity Commission published an article linking Copper Chrome Arsenate (CCA) treated timber to Arsenic threshold breaches. This article states:

 “CCA is a wood preservative used to treat timber against rot and pests. Licking or chewing of kennels or yards with treated timber has been implicated in threshold breaches. CCA is dangerous because it contains arsenic, a known human carcinogen. Over time, the arsenic can leak out from inside the wood into the surrounding soil and onto the surface of the wood. From the surface, the arsenic can be picked up on the paws of passing pets, who later ingest it.”

[21]  Whilst present at the Respondent’s property on 17 April 2024, RIB Investigators obtained two samples of timber from ORSON BLONDE’S kennel.  A small sample of feed supplement Virbac Neutradex Syrup was decanted and retained for further analysis.

[22]  A sample of bore water was also obtained for testing purposes.

[23]  The timber samples underwent Timber Preservative Treatment Testing conducted by IVS Laboratories to ascertain the level of Arsenic present in the timber.

[24]  At the conclusion of the testing, the Arsenic Retention Analysis for both timber samples returned levels of 0.112 and 0.093 respectively, meeting the minimum retention requirements of the specifications for H 3.2 CCA treated timber in final size/shape/form for use in New Zealand as per NZS 3640:2003.

[25]  Upon speaking to the IVS Laboratory Operations Manager, she advised that “the levels found in the wood are typical for H 3.2 treated timber and are not considered particularly high for this treatment type, it is lower than H4 or any other CCA treatment or hazard class”.

[26]  Both the analysis of the Neutradex Syrup and bore water has come back with minute traces of Arsenic detected. Bore water level being 0.0005mg/L and the Neutradex Syrup sample 0.1mg/kg.

[27]  No other sources of Arsenic were located whilst at the Respondent’s kennel and training facility.

Conclusion

[28]  Despite extensive enquiries to locate the source of the Arsenic, RIB Investigators were unable to ascertain the direct cause of the threshold breach.

[29]  It is suspected that the elevated levels of Arsenic detected is as a result of ORSON BLONDE chewing timber within her kennel.

[30]  The Respondent has been charged under Rule 141(1)(a) of the GRNZ Rules.  This being a strict liability offence – as the Trainer, he must ensure that his Registered Greyhounds are free from Prohibited Substances.

Penalty Submissions – Applicant

The Applicant (RIB) provided written penalty submissions which are summarised as follows:

[31]  The RIB submits that the principles of sentencing relevant to this charge can be summarised as follows:

• Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.
• In a racing context, it is extremely important that a penalty has the effect of deterring others from committing similar offences.
• A penalty should also reflect the disapproval of the Committee for the type of offending in question.
• The need to rehabilitate the offender should be considered.

[32]  It is submitted by the RIB that the first three principles are particularly important in this matter.

Prohibited Substance Thresholds for Arsenic

[33]  On 1 October 2021, GRNZ introduced an amendment to the definition of Prohibited Substance. This amendment was introduced to create thresholds for several substances which, when above the allowable threshold, become an offence under the Rules.  This includes Arsenic as indicated below:

(iv) Arsenic at or below a mass concentration of 800 nanograms per millilitre in a Sample of urine taken from a greyhound will not breach the provisions of subrule (d) of this definition.

[34]  Arsenic is a naturally occurring trace element that is present in Greyhounds at very low levels as a result of normal dietary intake and environmental exposure.

[35]  An excessive amount of Arsenic has been shown to have an effect on the cardiovascular system and therefore is a Prohibited Substance when present in a sample at concentrations well above that which would naturally occur through routine nutritional sources.

[36]  Testing undertaken in New Zealand since 2021, has revealed that the average level of Arsenic in Greyhounds is approximately 60ng/mL.

[37]  Arsenic over 800ng/mL in a raceday sample is, prima facie, a breach of the Rules.

Comparable Cases

[38]  There have been three recent GRNZ Arsenic positives since the introduction of the 2021 threshold:

RIB v C WATSON (April 2023)

[39]  Trainer Watson was charged with a breach of the threshold (1158ng/mL) under the old Rule 61.1 and penalty provisions. The source of the elevated level was also believed to be from the Greyhound licking the recently stained, CCA treated, wooden kennel floor. Trainer Watson was fined $1,000.

RIB v M CLARK (December 2023)

[40]  Trainer Clark was charged with 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 Copper Chromium Arsenate (CCA) treated timber. Trainer Clark was fined $800, all of which was suspended for 12 months per Rule 174(3).

RIB v J JOHNSON (May 2024)

[41]  Trainer Johnson was charged with a breach of the Arsenic threshold from his Greyhound BIG TIME HEAVEN, which returned a positive to Arsenic, at a level of>1600ng/mL, from a race meeting held at Addington on 11 March 2024. RIB’s Submission highlighted that the likely source of the threshold breach was from the CCA treated timber located in the kennel in which BIG TIME HEAVEN was housed. Johnson was fined $1,000 – all of which was suspended for 12 months per Rule 174(3).

[42]  On 23 December 2023, as a result of the Watson and Clark Decisions, GRNZ posted an advisory on their website highlighting the potential risk of Arsenic contaminated kennel timber. It is unknown when the advisory was taken down, but another reminder was posted recently on 1 May 2024.

[43]  It is unknown whether GRNZ notified Trainers directly via email. The Respondent stated that he had not seen the advisory on the website and does not have an email address.  On that basis, he would not have been able to receive any email notifications or warnings concerning Arsenic.

[44]  Prior to the RIB’s enquiries on 17 April 2024, the Respondent had not considered that plywood or treated pine contained Arsenic.

Aggravating Factors

[45]  The Respondent was aware that ORSON BLONDE was a chewer.  The RIB submits that given wood chips and shavings he had located in her blanket and being an experienced Trainer, he should have sought advice about the possible ramifications of the Greyhound consuming that quantity of wood.

[46]  However, it is acknowledged that the Respondent was not aware prior to the RIB’s visit on 17 April 2024, of the large quantity of treated wood that the Greyhound had consumed, with a wooden support beam in the roof of the kennel having been completely chewed through.

Mitigating Factors

[47]  The Respondent has admitted the charge at the earliest opportunity and has been cooperative and respectful with RIB staff throughout the process.

[48]  Upon being advised of the screening result, he has taken action by way of remediation to the roof and lining of the kennel, to remedy future risk of the Greyhound being exposed in her kennel to treated timber/wood and potentially Arsenic is greatly reduced.

[49]  The Respondent has no previous breaches of the Prohibited Substance Rule or any serious racing offences under the Rules of Greyhound Racing New Zealand.

Conclusion

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

[51]  An order is sought for ORSON BLONDE to be disqualified from her placing in Race 5 on 7 March 2024 at the Waikato Greyhound Racing Club Meeting pursuant to Rule 141(4) Rules of GRNZ.

[52]  No costs are sought by the RIB.

Penalty Submissions – Respondent

[53]  The Respondent freely admitted the breach.

[54]  He has accepted responsibility and has not submitted penalty submissions.

Decision and Reasons

[55]  GRNZ Rule LR174A which relates to penalties for Prohibited Substances Offences provides that:

… (2) An Adjudicative Committee is to have regard to the prescribed starting points when considering any matter relating to the level of penalty imposed or to be imposed in respect of an offence involving a prohibited substance.

Arsenic is Category 4 (Cat 4) Prohibited Substance and has a penalty starting point of 6 months and/or a fine of $5,000.  The Adjudicative Committee has had due regard for the starting point. The Adjudicative Committee has also had regard for the fact that GRNZ Rules provide for a flexible range of penalty options to be considered, as per the updated Rules and Regulations which came into force on 1 February 2023.

Reasons for penalty

[56]  After having (a) evaluated the evidence, (b) considered the submissions lodged by the RIB, (c) determined the Respondent’s level of culpability to be at the low-end and (d) weighing up the sentencing options that are available under the Rules, the Adjudicative Committee, concludes that a fine (suspended) is the most appropriate penalty in the circumstances of this case.

[57]  The RIB investigation included testing of the kennel timber, water and small sample of the feed supplement Virbac Neutradex Syrup.  Although the test results were inconclusive in terms of pinpointing the exact cause of the elevated Arsenic level, based on the available evidence, it is more probable than not, the elevated Arsenic level of 982μg/L is the result of ORSON BLONDE having chewed wood in her kennel. The RIB concurs with this finding (refer paragraph 29).

[58]  This breach is categorised as a strict liability offence and, in that regard, it is not necessary to establish that the Respondent intended to breach the Rule. The evidence clearly points to the fact that there was no deliberate / intentional act or omission on his part that led to the breach.

[59]  Additionally, there is no evidence that he was aware the kennel timber either contained Arsenic or that there was a possibility it could contain Arsenic.  The Respondent advises that he has no access to emails, and it appears he may have been oblivious to the fact that GRNZ on 23 December 2023, posted an advisory on their website highlighting the potential risk of Arsenic contaminated kennel timber. The Respondent stated that he had not seen the advisory on the website. The cautionary advisory was promulgated following the Watson and Clark Decisions.

[60]  Furthermore, an earlier alert to Trainers in Australia in 2016 (2016-12-20/trainer-alert-arsenic-threshold) outlined the following warning:

Trainer Alert – Arsenic Threshold…. Trainers are advised to be extremely cautious using products that contain arsenic close to racing as this may inadvertently lead to a rise in urinary arsenic levels. The administration, particularly by injection and on multiple occasions or at larger ‘off-label’ doses, of certain registered vitamin supplements close to racing may result in a level of arsenic in a subsequent sample that exceeds this threshold. Trainers are therefore advised to avoid the use of these supplements close to racing……Participants are reminded to follow good husbandry practices including using gloves to prepare the greyhound’s food, not allowing the greyhound to lick human skin, and not storing medication within the kennels.

[61]  The Respondent, it appears, would not have known about the warnings issued by the Australian Greyhound Authorities.

Precedent cases

[62]  The Adjudicative Committee has noted and considered the precedent cases that were submitted by the RIB – notably RIB v Watson, RIB v Clark and the most recent decision RIB v Johnson which was published on the RIB Decisions Website on 23 May 2024.

[63]  The circumstances of Watson, Clark and Johnson closely match the circumstances of this case and therefore provide useful guidance in calibrating penalty and ensuring parity and consistency.

Mitigating Factors

[64]  The Adjudicative Committee deems the following factors to be relevant.  These also take into account mitigating factors highlighted by the RIB.

1. The Respondent admitted the breach at the first opportunity, and he cooperated with the RIB during the investigation.
2. The Respondent has been involved in Greyhound Racing as an Owner and Trainer for several years and has a clear record under Rule 141.
3. The Respondent has accepted responsibility and has been proactive in carrying out remedial work on his kennel(s) since being advised of the breach.
4. There was no intent to deceive or benefit financially or otherwise, from the breach.
5. The Respondent agreed to have the matter dealt with ‘on the papers,’ thus avoiding the need for a costly hearing.

Aggravating Factors

[65]  There are no aggravating factors requiring consideration of a penalty uplift.

Conclusion

[66]  The RIB has submitted that an appropriate penalty in this case would include a $1,000 fine, with the penalty wholly suspended for a period of 12 months, on the proviso that if a second relevant offence against GRNZ Rule 141(1) was to occur during the 12-month period, the $1,000 fine would be activated.

[67]  Given that this breach is similar in nature to the highlighted precedent cases, which resulted in penalties similar to that submitted by the RIB, the Adjudicative Committee is of the firm view that there are no compelling reasons to deviate too far from the penalties imposed in those cases.

[68]  Therefore, in conclusion, combined with the need to ensure that the penalty reflects natural justice, fairness and proportionality principles balanced against the need for accountability, the Adjudicative Committee has determined a $1,000 fine, suspended for 12 months, is an appropriate penalty.

Penalty

[69]  With regards to Information A17981, the Respondent Mr Lawrence, is fined $1,000, all of which is suspended for 12 months per r174(3).

Costs

[70]  The matter was dealt with on the papers.  There is no order for costs.