Non Raceday Inquiry – Written Penalty Decision dated 3 November 2023 – John McInerney

1. A penalty hearing took place online on 30 October 2023.

2. The Respondent has admitted to two charges under the Greyhound Racing New Zealand Rules of Racing (the Rules).

a. Information A16907 (Welfare Charge). That between 7 and 12 October 2022, being a Licensed Public Trainer, he failed to comply with the GRNZ Health and Welfare Standards (the Welfare Code), and in doing so, failed to provide proper care for the health of IMPRESSIVE ISLA, a Greyhound under his control by not relieving the Greyhound’s pain, suffering and distress.

b. Information A16914 (Methamphetamine Charge). That on 13 April 2023, being a Licensed Trainer of Greyhound ALPHA RILEY, who was out of competition tested at his Himatangi Kennel, failed to produce that Greyhound free of Permanently Banned Prohibited Substances, Methamphetamine, Amphetamine, being an offence under the provisions of Rule 139(3) of the Rules.

BACKGROUND – WELFARE CHARGE

3. On 12 September 2022, IMPRESSIVE ISLA, trained by the Respondent, performed poorly in a race, and was examined by the on-course Vet, Dr Reedy, who diagnosed a leg injury.

4. Dr Reedy prescribed Carprieve, a painkiller, and issued a 42-day standdown for IMPRESSIVE ISLA.

5. Approximately three weeks later, the Respondent’s Vet Dr Koning, examined IMPRESSIVE ISLA and found her condition worsened. X-rays revealed osteosarcoma (a bone tumour). IMPRESSIVE ISLA was euthanised due to severe pain. A post-mortem confirmed the presence of osteosarcoma.

6. In questioning by RIB investigators, the Respondent claimed to have followed the prescribed treatments, including Carprieve.

7. Subsequent urine analysis found no trace of carprofen, the active ingredient in Carprieve.

8. The Respondent, as a Licensed Trainer, was responsible for IMPRESSIVE ISLA’s welfare. RIB Investigators concluded that appropriate care and relief of IMPRESSIVE ISLA’s pain had not been provided, in breach of the Code of Welfare.

9. The Respondent has three previous animal welfare offence charges.

BACKGROUND – METHAMPHETAMINE CHARGE

10. On 13 April 2023, RIB Investigators conducted a kennel audit at the Respondent’s satellite kennel at Himatangi in the North Island.

11. A urine sample obtained from Greyhound ALPHA RILEY, being a Greyhound trained by the Respondent, recorded presence of both Methamphetamine and Amphetamine, following laboratory results on 1 May 2023.

12. Methamphetamine and Amphetamine are Permanently Banned Prohibited Substances under Rule 139(1) of the Rules.

13. A swabbing of the vehicle used by the kennel representative, Mr Stephen McInerney, to transport Greyhounds, returned positive results for trace amounts of Methamphetamine.

14. Mr Stephen McInerney also provided a urine sample which returned positive results for Methamphetamine, Amphetamine and Cannabinoids.

15. The Respondent was jointly charged with Mr Stephen McInerney for failing to produce a dog free of a Permanently Banned, Prohibited Substance.

INFORMANT’S SUBMISSIONS

Welfare Charge

16. Mr Parry, for the Informant, submits the starting point is that the Respondent was ultimately responsible for IMPRESSIVE ISLA’s welfare under the Rules and cannot delegate this responsibility to another person.

17. It is highlighted by Mr Parry that offending of this nature, and its risk of adversely affecting the interests of the professional racing body, is something that has been of foremost consideration in this jurisdiction (RIB v McInerney RIB 9826), noting the health and welfare of Greyhounds is of utmost concern to Greyhound Racing NZ and crucial to the future of Greyhound Racing, particularly when the social Licence of the Industry is under challenge. There is an expectation that a Licenceholder’s record in relation to matters that concern the Welfare Code should be exemplary.

18. It is highlighted by Mr Parry that any charge involving animal welfare is a serious matter, and the failure to relieve IMPRESSIVE ISLA’s harm and distress did not meet the standards expected of a Licenceholder. Mr Parry notes IMPRESSIVE ISLA was exhibiting symptoms requiring immediate pain relief for a number of days before an x-ray was finally sought, following which she was required to be immediately euthanised.

19. It is acknowledged by the Informant that IMPRESSIVE ISLA’s underlying condition was not caused through neglect, however the focus remains on failing to meet the high standards expected as to welfare once the Respondent was put on notice as to IMPRESSIVE ISLA’s condition.

20. Mr Parry highlights the penalty must function as a denunciation and deterrence to others. It is accepted by the Informant that the breach is considerably less serious than RIB v Agent and Williams (RIB v Agent and Williams RIB 10697), however it is submitted, considerably more serious than the Respondent’s previous breach in 2022, which resulted in a fine on that occasion.

21. Mr Parry notes that the Respondent has three previous welfare related offences, and considering those previous breaches, it is submitted by the Informant that a penalty of six months disqualification is appropriate to sanction this offending. This penalty is sought concurrently with the disqualification period for the Methamphetamine Charge.

Methamphetamine Charge

22. In relation to the Methamphetamine Charge, Mr Parry submits that offending of this nature carries with it significant risk of adversely affecting the interests of the professional racing body. It is noted that numerous Adjudicative Committees in this jurisdiction, have highlighted the issues associated with Methamphetamine – highlighting it is at the heart of many health, social and economic problems within communities across New Zealand.

23. Mr Parry highlights that contamination of a dog with a Class A Drug is a serious matter which undermines the integrity of the Racing Industry and poses a serious animal welfare and safety issue. Any penalty should demonstrate the denunciation of this sort of offending and function as a deterrence to others.

24. It is noted that the starting point for this type of offending ranges from 16 months to 2 years and 9 months.

25. Mr Parry notes that the Respondent’s offending is broadly comparable to that involved in the cases of Gowan (RIB v Gowan RIB 11324, Waretini (RIB v Waretini RIB 25494) and Toomer (RIB v Toomer RIB JCA/2020). It is not alleged that the Respondent was responsible for the contamination, but as a Licensed Trainer, he did fail in his obligations to take all care to ensure that contamination could not occur.

26. The Adjudicative Committee’s attention is drawn to comments in the Toomer case, that where a Licensed Person is aware of an actual or potential risk of contamination of a Class A Drug, such as a case where an adult present has a past drug history, that is a relevant consideration. Mr Parry highlights that the Respondent had knowledge of Mr Stephen McInerney’s previous drug use, and this triggered a duty to ensure he take all reasonable steps to comply with the Rules.

27. Mr Parry accepts however, that while the Respondent knew Mr Stephen McInerney had a history of drug use, there is no evidence available that he was aware it was Methamphetamine.

28. It is submitted by the Informant that a penalty in the range of 15-18 months disqualification is an appropriate sanction for the Methamphetamine Charge.

RESPONDENT’S SUBMISSIONS

29. As a preliminary matter, Mr Evans highlights that while it is accepted the Welfare Charge was admitted on the day of the hearing, the Methamphetamine Charge was transferred to the Adjudicative Committee on that same day before any steps beyond the Filing and Service of Information had taken place.

Methamphetamine Charge

30. It is highlighted that the Respondent has admitted the Methamphetamine Charge at the earliest possible opportunity.

31. Mr Evans also relies on the Toomer case, noting a starting point of 24 months was reduced to 14 months on account of admission at earliest opportunity and cooperation with Racing Authorities.

32. Mr Evans accepts a ten-month reduction as in Toomer would be inappropriate, however contends a starting point of 12 months reduced to 9 months, being a three-months reduction or 25% of the starting point is a suitable discount to reflect the immediate admission. It is highlighted by Mr Evans that the disqualification will result in significant loss of income and livelihood by the Respondent, and that the Adjudicative Committee ought to take this into account in its consideration of appropriate penalty.

33. At hearing, Mr Evans also highlighted that the Adjudicative Committee needed to bring a degree of context as to what took place in this instance. It was the Respondent trying to help his son, as soon as the Respondent became aware of the incident, he terminated his son’s employment, and the dogs were removed from his son’s care immediately.

Welfare Charge

34. Mr Evans contends that the Respondent’s case in respect to the Welfare Charge had merit, drawing attention to a brief filed by the Respondent’s Veterinary Expert Dr Mehrtens, who noted that osteosarcoma was a very unusual and rare occurrence in such a young dog, which Mr Evans submits puts this case into a different category.

35. In any event, it is highlighted that the Respondent has entered admission as to the Welfare Charge. Mr Evans highlights that the Informant’s position on the Welfare Charge following Dr Mehrtens’ statement and other medical evidence that was made available, and that Counsel for the Respondent maintained regular contact as the case evolved, which ultimately led to the resolution of the case in the weekend prior to the Respondent’s submission, and noting such discussion took place on the first morning of the hearing that clarified some issues and had resulted in the change in plea.

36. Mr Evans submits that this demonstrates that the Respondent has been responsive and cooperative throughout the entire investigation and prosecution process.

37. It is submitted that a disqualification of three months on the Welfare Charge is appropriate and should run concurrently with the Methamphetamine Charge.

PENALTY DECISION

38. The Adjudicative Committee has considered both the written submissions as filed by the parties, together with submissions at hearing.

39. As was advised at the hearing, the Adjudicative Committee has determined that the imposition of a disqualification is an appropriate penalty for both offences in this case.

40. The Adjudicative Committee reserved its Decision as to length of penalty, which it now determines as follows.

Methamphetamine Charge

41. The Adjudicative Committee agrees with the submissions of the Informant that the presence of Methamphetamine is indeed an aggravating factor. As the cases referred to the Adjudicative Committee demonstrate, there have been a series of offences heard in this jurisdiction involving the presence of Methamphetamine, and on every occasion, the Adjudicative Committee has remarked that such case must serve as a warning and deterrent.

42. The Adjudicative Committee further notes that the case of Toomer, on which both parties placed reliance, highlights that there is an expectation of a higher level of care on the responsible Licenceholder where an actual or potential risk occurs.

43. It is evident that at a high level, the Respondent was aware of his son’s issues with drugs and in the Adjudicative Committee’s view, that did obligate him to adopt a higher level of care to ensure that any risk that flowed from that was appropriately managed and supervised.

44. In mitigation, the Adjudicative Committee notes Mr Evans’ point that the Respondent was motivated to support his son and provide an opportunity, has been let down by his son’s actions, and now faces severe consequences as a matter of resulting liability.

45. The Adjudicative Committee also notes that, upon becoming aware of the issue, the Respondent took immediate steps to terminate the engagement of his son, and to shift the Greyhounds back into his direct care and supervision.

46. Having regard to the case of Toomer, it is noted by the Adjudicative Committee that there is a relevant distinction that, in the Toomer case, the Respondent had direct oversight of the kennel facility, whereas in this instance, the Respondent did not have the same level of direct oversight given the geography and the offending taking place at a satellite kennel in the North Island.

47. Nevertheless, the Respondent properly acknowledges that he must accept the consequences of that lack of oversight of the North Island operation.

48. The Adjudicative Committee accepts that a relevant distinction must be drawn as to the admission of this charge, and that it cannot be conflated with the procedural steps of the Welfare Charge, in that it was ancillary, being transferred from another Adjudicative Committee, for the charges to be admitted and heard by this Adjudicative Committee as to penalty, contemporaneous with the Animal Welfare Charge that was admitted on the day of hearing.

49. The Adjudicative Committee accepts the submission that the Methamphetamine Charge cannot be treated as having been admitted on the day of hearing, rather it was transferred at an early stage and admitted as an adjunct to the Animal Welfare Charge, which was the matter primarily before this Adjudicative Committee on the day of hearing.

50. The Adjudicative Committee accepts Toomer is a useful starting point and presents useful guidance subject to the above qualifications and adopts 14 months as a starting point and considers a reduction of two months is justified, reflecting an early admission of guilt and the cooperation of the Respondent as to this charge.

Welfare Charge

51. As has been a theme across many recent Decisions in this jurisdiction, holding a Licence is a privilege and not a right, and with it comes significant responsibilities, not only to the Greyhounds in terms of their ongoing care and welfare, but also to the Industry as a whole in ensuring that it maintains a social Licence to operate.

52. There has been a continuing emphasis on animal welfare in the Greyhound Code since 2019 and it is a clear and settled position that the Licensed Trainer is ultimately responsible for the animal’s welfare under the Rules and cannot delegate this responsibility to any other person.

53. The Respondent is well aware of this, noting a prior Adjudicative Committee case involving him recording the expectations as a Licenceholder in relation to animal welfare should be exemplary.

54. The Respondent’s failure to relieve IMPRESSIVE ISLA’s harm and distress clearly does not meet these standards.

55. The Adjudicative Committee notes the Respondent’s submission that reliance was placed on the initial diagnosis of the Vet, and the dog stood down from racing. The Adjudicative Committee accepts on the basis of expert Veterinary advice provided, that osteosarcoma does present a rare set of circumstances, in particular in a dog of IMPRESSIVE ISLA’s years.

56. The responsibilities of a Licenceholder impose a proactive obligation to continually monitor and assess the wellbeing of all Licensed animals under their care.

57. In the Adjudicative Committee’s view, it would be wrong to categorise the circumstances as an unforeseeable situation wholly attributable to a rare illness. Rather, the matter is properly analysed in terms of a situation of deteriorating health for an animal in the Respondent’s care for which steps were not taken with the immediacy they demanded. That is the clear inference available to the Adjudicative Committee based on the facts before it.

58. It is an aggravating factor that the Respondent has previously been charged with animal welfare related matters and, as such, was clearly aware of the expectations of him as a Licenceholder, and in such circumstances, the Adjudicative Committee considers anything short of disqualification for failing to meet the expectations of the Industry in relation to animal welfare, would be inadequate.

59. The obligations of Licenceholders in relation to animal welfare have been well signalled in the Industry, and penalties must reflect the seriousness with which the Industry takes such matters.

60. The Adjudicative Committee is somewhat concerned at the submission by the Respondent that suggests the admission to this charge was entered in the context of disqualification being inevitable on the Methamphetamine Charge. Such submission, in the Adjudicative Committee’s view, raises a level of concern as to the Respondent’s commitment to ensuring that he meets relevant animal welfare standards moving forward, particularly in the context of three prior charges for Animal Welfare Offences.

61. In the circumstances, the Adjudicative Committee considers a six-month disqualification is appropriate for this charge, and should reflect the seriousness with which the Industry takes Animal Welfare Charges.

COSTS

62. Both parties have made submissions as to costs.

63. Mr Parry submits standard practice of the Adjudicative Committee has been to award 60% of external costs and that such approach is appropriate in this case.

64. Mr Evans submits that, drawing guidance from the Waretini case, 40% would be a fair contribution, having regard to the admission of the charges and noting the Methamphetamine Charge was entered at the earliest opportunity.

65. In relation to the Methamphetamine Charge, the Adjudicative Committee accepts, in the circumstances, it has been entered in the earliest opportunity and should have, as such, limited bearing to the Costs Decision.

66. The RIB, in its Informant and Adjudicative capacity, has incurred significant expense in making arrangements for a defended hearing at Addington. The Adjudicative Committee accepts that some of this cost was allayed through the entry into admission of the Animal Welfare Charge on the morning of the day of the first hearing. It did nevertheless, result in significant costs being incurred in anticipation of a defended three-day hearing.

67. In the circumstances, the Adjudicative Committee considers a contribution of 50% is appropriate, together with standard Adjudicative Committee costs.

68. The total costs incurred by the Informant totalled $12,053.08, comprised of:

Legal costs – $11,128

Costs incurred in securing attendance of Veterinarian Witnesses – $925.08

SUMMARY

69. Charges

a. On the Methamphetamine Charge, the Respondent is disqualified for twelve months, commencing on 20 November 2023.

b. On the Animal Welfare Charge, the Respondent is disqualified for a period of six months commencing on 20 November 2023.

70. The periods of disqualification are concurrent.

71. The Respondent is ordered to pay costs to the Informant of $6,026.54.

72. The Respondent is ordered to pay costs of the Adjudicative Committee of $2,500.