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Non Raceday Inquiry RIU v K R Toomer - Reserved Decision dated 3 November 2020 - Chair, Mr G Jones

Created on 03 November 2020

BEFORE A JUDICIAL COMMITTEE OF THE JCA

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND Keith Robert Toomer

Licensed Public Trainer NZGRA

Respondent

Information: A8484

Hearing at Alexandra Park, Auckland on 30 October 2020

Judicial Committee: Mr G Jones, Chairman and Mr A Godsalve, Committee Member

Present: Mr O Westerlund, RIU Racing Investigator, for the Informant,

Mr Toomer and Mr N Green (Lay Advocate).

RESERVED DECISION OF JUDICIAL COMMITTEE dated 3 NOVEMBER 2020

Introduction

[1] Licensed Greyhound Trainer, Mr K Toomer has admitted one charge alleging that on 10 September 2020 he presented his greyhound MARGAUX to race in Race 1 at the Waikato Greyhound Racing Club when the said greyhound was brought onto the racecourse with the Category 2 Prohibited Substance, namely Methylamphetamine (Methamphetamine) and Amphetamine in breach of rules 61.1 and 61.3.

[2] This prosecution was authorised by Mr Godber, the General Manager of the RIU, by way of letter dated 7 October 2020.

[3] The hearing in relation to this charge took place at Alexandra Park, Auckland on 30 October 2020.

The Charge

[4] The charging document, Information number A 8484 alleges that:

On Thursday the 10th day of September 2020, Keith Toomer was the licensed Trainer of the Greyhound “MARGAUX” which was presented for and raced in Race 1, the ‘Thrilling Boris @ Stud Sprint CO 375m’ at a race meeting conducted by the Waikato Greyhound Racing Club at Cambridge, when the said Greyhound was brought onto the racecourse with the Category 2 Prohibited Substance, namely Methylamphetamine (Methamphetamine) and Amphetamine, being an offence under the provisions of Rules 61.1 and 61.3 and punishable pursuant to Rule 63.1 and 61.4 of the New Zealand Greyhound Racing Association Rules.

The Plea

[5] Mr Toomer indicated on the Information that he admitted the breach. This was confirmed at the commencement of the hearing.

[6] Following the guilty plea, the remainder of the hearing focused on the agreed Summary of Facts and Penalty Submissions.

[7] Mr Toomer was supported at the hearing by Greyhound Trainer, Mr N Green, in a lay advocate role. This was approved by the Committee in accordance with s.23.5 of the 7th Schedule which sets out Common Rules of Practice for Judicial Committees.

Penalty Provisions

[8] Rule 61.1 provides that:

“The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.”

[9] Rule 61.3 provides that:

“Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.”

[10] The penalty rule is r63.1 which provides that:

“Any Person found guilty of an Offence under these Rules shall be liable to:

(a) a fine not exceeding $10,000 for any one (1) Offence except a luring/baiting Offence under r 86; and/or

(b) Suspension; and/or

(c) Disqualification; and/or

(d) Warning Off.”

[11] In addition, Rule 61.4 provides that:

“Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.”

The starting point for a Category 2 prohibited substance breach is 5 years disqualification, as established by NZGRA – Categories of Prohibited Substances.

Summary of Facts

[12] The Respondent Mr Keith Toomer is a licensed Owner Trainer under the Rules of the New Zealand Greyhound Racing Association.

[13] On Thursday the 10th September 2020, MARGAUX was correctly entered and presented to race by Mr Toomer in Race 1, the Thrilling Boris @Stud Sprint C0, over 375m at the Waikato Greyhound Racing Club meeting at Cambridge.

[14] Mr Toomer did not attend the meeting and the greyhound was taken to the races by Mr Toomer’s son Ethan who holds a Handlers Licence.

[15] MARGAUX underwent a random pre - race swab. The swabbing process is not contested.

[16] MARGAUX finished fourth of the eight Greyhounds and won a stake of $80.

[17] All swab samples from the meeting were couriered to the New Zealand Racing Laboratory and were analysed for the presence of substances prohibited under the Rules of the New Zealand Greyhound Racing Association.

[18] On the 29th September 2020 the Official Racing Analyst reported in writing that the sample from MARGAUX had tested positive to Methamphetamine and Amphetamine.

[19] Methamphetamine is classified as a Class A controlled substance under the Misuse of Drugs Act 1975. Methamphetamine is one of a family of drugs called Amphetamines, which act as central nervous system stimulants. They speed up the messages to and from the brain – earning them the street name ‘speed’.

[20] Methamphetamine and Amphetamine (which is a metabolite of Methamphetamine) are Prohibited Substances within the meaning of the Rules and their presence in a raceday sample is, prima facie, a breach of the Rules.

[21] Enquiries were carried out at Mr Toomer’s training kennels and home address in Pokeno on Wednesday the 30th September 2020.

[22] Mr Toomer resides at the address with his son Ethan. His other son Jared and his young family also reside at the address during this period.

[23] Mr Toomer and his son Ethan were spoken to and were shocked at the positive result.

[24] Mr Toomer further explained that his son Jared used Methamphetamine when he was living in Australia and that was the reason why he returned to New Zealand to get away from it.

[25] There was no evidence or suggestion that either Mr Toomer or his son Ethan use or have used Methamphetamine.

[26] Jared has since moved to Whangarei with his family for employment and has no connection with the Greyhound Industry.

[27] On Saturday the 10th October 2020 Jared was spoken to in Whangarei. He stated that on the afternoon of Tuesday the 8th September 2020 a few of his friends came to the Pokeno address. They had ‘Meth’ with them and that he also handled the ‘Meth’. The greyhound MARGAUX was present when his friends were there and it is highly likely that himself and his friends touched and handled the dog.

[28] Mr Toomer has been involved in the greyhound industry for about 25 years. He has had no previous breaches of the Prohibited Substance Rule.

Mr Toomer’s Response

[29] In response to the Summary of Facts Mr Toomer submitted that he agreed with the contents and had nothing further to add.

Penalty Submissions – Informant

[30] Mr Westerlund provided the Committee with written penalty submissions and in his oral submissions he reinforced the salient points.

[31] In his submissions Mr Westerlund outlined the Rule and Penalty Provisions relevant to the charge. He confirmed that Mr Toomer had pleaded guilty and the circumstances as outlined in the Summary of Facts are not disputed and fairly reflect the issues that gave rise to the charge. He also raised the three key sentencing principles for the Committee to consider; namely:

(a) That penalties are designed to punish the offender for his/her wrong doing. 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.

(b) That in a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences; and

(c) That the penalty should also reflect the disapproval of the JCA for the type of offending in question.

[32] Mr Westerlund submitted that the RIU were seeking a 2-year period of disqualification and in support of this he highlighted the following issues:

[33] That Mr Toomer is a licensed Owner Trainer under the Rules of the New Zealand Greyhound Association. He is 62 years old and has been involved in the industry for a period of twenty-five years.

[34] That Methamphetamine and Amphetamine are categorised as a Category 2 Prohibited Substances. The penalties allow for starting point of 5 years disqualification.

[35] That Penalty Guidelines have been well publicised within the Greyhound Racing community; and are intended to encourage more responsibility, diligence and compliance with the Rules by Trainers and those in charge of Greyhounds at race meetings.

Mitigating factors raised by the Informant

[36] That Mr Toomer admitted the breach at the first available opportunity; he has accepted responsibility and has been fully co-operative throughout the process.

[37] That Jared Toomer (son) was spoken to and he stated that on the afternoon of Tuesday the 8th September 2020 a few of his friends came to the Pokeno address. They had ‘Meth’ with them and that he also handled the ‘Meth’. The greyhound ‘Margaux’ was present when his friends were there and it is highly likely that himself and his friends touched and handled the dog causing the possible contamination. 

[38] That there were no significant bets placed on the greyhound MARGAUX.

[39] That Mr Toomer has no previous Prohibited Substance breaches during his training career.

Aggravating factors raised by the Informant

[40] That Methamphetamine is a ‘Class A’ controlled drug and Amphetamine a ‘Class B’ controlled drum under the Misuse of Drugs Act 1975.

[41] That Methamphetamine poses a significant animal welfare issue to the greyhound involved.

[42] That Mr Toomer acknowledged that his son Jared has used Methamphetamine in the past and was immediately suspicious that he may be using it again and acknowledged the fact that he should have informed his son Jared to keep away from the greyhound when using drugs.

Precedent cases

[43] In support of his submission as to penalty Mr Westerlund drew the Committee’s attention to two precedent cases; namely.

RIU v D Schofield (April 2018) – In this matter a Greyhound tested positive to ‘Methamphetamine and Amphetamine’. The penalty imposed was a disqualification of 2 years.

RIU v D Schofield (12.12.11) in this matter a Greyhound tested positive to Amphetamine the cause of which was not confirmed. The penalty imposed was a fine of $3,000 plus JCA costs and the greyhound disqualified.

[44] Mr Westerlund submitted that the RIU seek the disqualification of MARGAUX pursuant to Rule 61.4 and the repayment of 4th the stake money ($80).

[45] The RIU do not seek any costs

Penalty Submissions – Respondent

[46] The Committee was provided with detailed written submissions which had been prepared by Mr Toomer’s Counsel. These submissions were particularly helpful and have been carefully considered and taken into account by the Committee. The salient points included:

• That Mr Toomer has had limited time to prepare his Penalty Submissions due to the truncated time period between the return of the positive swab and the date set for the penalty hearing.

• That the sentencing principles including the need to rehabilitate and natural justice be given due consideration.

• That neither Mr Toomer or his son Ethan have used Methamphetamine.

• That there was no significant betting on the dog in the race – therefore did not gain an advantage.

• That it is not possible to say how, when or where the dog was contaminated – other than via son Jared’s admission – other than that the possibility was raised that the contamination may have resulted from someone totally unconnected.

• That Mr Toomer was aware of his son’s (Jared) past drug issues and as a precaution carried out periodic searches of his bedroom – without finding any evidence he had resumed using Methamphetamine. And in that regard Mr Toomer was not reckless as he took steps to minimize the risk of drugs being present on his property

• That Mr Toomer is not morally or otherwise culpable for the breach under the Rules – essentially as the breach was due to the actions of his son

• That it is accepted and Mr Toomer accepts the breach is one of strict liability – but it is submitted that Mr Toomer played no part in the breach and is deserving of significant credit.

• That in terms of the RIU v Schofield case there are a number of points of difference – a key difference being that whereas in the Schofield case the persons suspected of being responsible for the contamination refused to cooperate with the investigators; whereas in this case Mr Toomer’s son, Jared cooperated.

• That mitigating factors include Mr Toomer’s admission at the first available opportunity and that he has been fully cooperative throughout the investigation.

• That it is requested that name suppression should be afforded to Mr Toomer and his sons, as naming them would result in disproportionate harm.

• That a fine in the vicinity of between $500 -$1000 is sought and any disqualification would impose hardship on Mr Toomer given that his lifestyle is intimately connected with greyhound racing.

[47] In support of the written submissions, Mr Green made a number of oral submissions some of which reinforced the written material – the submissions not covered in the written material are summarised as follows:

• That Mr Toomer has been involved in the Greyhound Industry for over 25 years and has an unblemished record having never previously been charged with a breach of any Rule.

• That Mr Toomer is honest and reliable; and a disqualification would be a loss to the industry and it would be devastating for him due to the stigma that would be attached to any such ban.

• That the RIU v Schofield case is similar only to the extent that the drug in question, in both cases was Methamphetamine.

• That there have been other positive drug cases in racing where no penalties, small fines and/or no disqualifications have been imposed, for example RIU v A Brown (2017); RIU v Chilcott (2013) and RIU v Fahey (2019).

[48] Following submissions, the Committee sought clarification regarding the security of kennelling arrangements for his dog. The Committee was advised that as a result of concerns previously raised by the RIU regarding the location of the kennel being too close to the main road a new kennel was being built. In the interim, whilst a new kennel was under construction the dog was being temporarily housed in a kennel under the verandah attached to his house. We were told that the kennel was secure and this was confirmed by Mr Westerlund. 

[49] The Committee further queried Mr Toomer as to whether the issue or possibility of cross contamination had occurred to him, given his son’s previous drug taking history. He advised the Committee that he was conscious of his son’s history and that led him to undertaken periodic checks of his bedroom looking for evidence of drug taking.

[50] In response to Mr Toomer’s submission that the circumstances of his case differed significantly from the Schofield case; Mr Westerlund accepted that there were differences between the two cases and that he would leave it up to the Committee to determine whether Mr Toomer should receive a lesser penalty than the 2-year (Schofield) term of disqualification.

Discussion and Reasons for Penalty

[51] NZGA has issued a schedule of “Categories of Prohibited Substances”. There are 5 categories, 1 being the highest and 5 being the lowest. A Category 1 breach has a penalty starting point of 10 years disqualification, whereas a category 5 breach has a starting point of 3 months disqualification and/or $4000 fine.

[52] On the basis of the definition set out in the schedule, (i.e. all permanently banned substances as listed in the 5th schedule), this breach is classified as “Category 2” and the penalty starting point is set at 5 years disqualification.

[53] It is noted that the starting point for this Category breach does not differentiate between presentation (r61.1) and an administration (r61.2) breach in terms of the starting point. In our view an administration breach is more serious than a presentation breach and, on that basis, we do make a distinction terms of both culpability and penalty starting point.

[54] In determining the penalty, the Committee has had due regard for the impact this presenting breach has had on (1) public perception of Greyhound Racing as a whole; (2) on the integrity of the race that MARGAUX competed in; (3) animal welfare concerns relating to the effect the prohibited substance may have had on the greyhound MARGAUX; and (4) the need to maintain the confidence integrity of greyhound racing at every level, including the betting public who wager on the outcome of races.

[55] The Committee has also had due regard for the circumstances of the breach; Mr Toomer’s level of culpability and his personal circumstances. The Committee’s decision making on these factors were informed by the Penalty Submissions of the Informant and Respondent; as well as the range of penalties for similar breaches across the three Racing Codes.

[56] In terms of the submissions lodged on behalf of Mr Toomer we make the following comments:

a) On the question of name suppression, we believe that there is public interest, particularly within the Racing Industry in favour of naming all parties. Not naming those involved would unnecessarily cast dispersions on others in what is a relatively small and tight greyhound community within the northern region. We do not believe that naming any of the parties would cause extreme hardship to Mr Toomer or other persons connected with the case. Nor do we believe that there is a risk to the safety of others. Further, the written decision would be somewhat meaningless if names of those involved were suppressed or blanked out. Having said that, the Committee makes it absolutely clear that there is no suggestion or indeed evidence that Mr Toomer or his son Ethan have used or possessed Methamphetamine or other drugs.

b) Although we were told that a disqualification would cause hardship, we do not view Mr Toomer as an Owner/Trainer with one dog in work, as being heavily reliant on the Industry for his wellbeing, financial or otherwise.

c) The Committee accepts that there are significant differences between this case and the Schofield case, in particular due to Jared Toomer’s frankness and cooperation the source of the contamination, on balance, can be attributed to either Jared or his friends.

d) It was said on behalf of Mr Toomer that other cases that have resulted in minimal penalties ranging from no disqualification and fines; more closely match the circumstances of this breach; namely; RIU v Browne (01.09.2017) – Sotalol, NZTR, no clear explanation, $4000 fine. RIU v Chilcott (04.12.2013) – Tramadol, NZHR, possible human contamination, $3300 fine and RIU v D and J Fahey (16.09.19) – Codeine, NZGA, human contamination, $2,500 fine.

e) We do not think there are significant similarities, and in our view the cases referred to are distinguishable. The main difference is that this is a case involving the illicit Class A drug Methamphetamine, whereas the others related to either prescription or restricted/controlled drugs that are medicinal and the contamination arose from people who were prescribed them for therapeutic purposes. Whereas there are no proper or lawful reasons for any (non-exempt) persons to possess Methamphetamine (refer section 8 Misuse Drugs Act 1975 exemptions).

f) In his submissions it was suggested by Mr Green that the contamination in this case was no more severe that a young child inadvertently giving a greyhound a chocolate which resulted in a positive to caffeine. We do not agree with this analogy. We would naturally have some sympathy for a child mistakenly giving a dog a chocolate, resulting in a positive swab. However, in circumstances where there is an actual or potential risk of contamination of a Class A drug, such as Methamphetamine, by an adult with a past drug history, there is an expectation of a higher level of care. And that care falls on Mr Toomer who as a licensed person must ensure that he takes all reasonable steps to comply with the rules.

g) Whilst we agree with the submission that Mr Toomer was not reckless, we do believe he was negligent and therefore must shoulder some of the blame for enabling the circumstances that gave rise to his son and friends the opportunity to get as close as they apparently did to his dog. This we believe this is an aggravating factor.

[57] The Committee agrees with the submission that there are a number of mitigating factors in Mr Toomer’s favour including:

• Mr Toomer has a 25-year unblemished record.

• Mr Toomer admitted the breach at the first opportunity and has been cooperative.

• Mr Toomer immediately raised the possibility that his son may have been responsible for the contamination, thus reducing the need for and costs associated with a lengthy investigation.

[58] In concluding our comments, we refer to the remarks made by this same Committee in the case RIU v Donoghue (2019) which related to a licensed person in the Thoroughbred Industry testing positive to Methamphetamine. It was said:

Methamphetamine is a Class A controlled drug. The issues associated with its use are well documented and it is said to be at the heart of many health, social and economic problems within communities across the whole of New Zealand. The racing industry is a community in its own right and is not immune from the effects and consequences of this drug. Thankfully the detection of Methamphetamine is a relatively rare occurrence within racing. But a concern is the emerging risk of cross contamination. An increasing number of positives have emerged. Trace level identifications of Methamphetamine have been detected in tie up stalls on course and in other places that have traditionally been thought of as being environmentally sterile. Accordingly, industry participants should not become complacent and vigilance is called for as there remains a highly probable risk of an unwary winner of an iconic race returning a positive. And even if this was to occur and the connections are found to be blameless, it could still have immeasurable consequences for public trust and confidence in the industry (Jones, G and Godsalve, A Donoghue 2019).

[59] After taking into account the evidence and the various submissions we have adopted the Schofield 2-year disqualification penalty as our starting point. It was submitted on behalf of Mr Toomer that a fine in the vicinity of between $500 and $1000 would be an appropriate penalty. In our determination a fine would be an inappropriate penalty under the circumstances. It would send the wrong message and would not be viewed as a deterrent penalty.

[60] As we have already alluded to there are a number of mitigating factors in Mr Toomer’s favour and we view his offending as being less culpable than that disclosed in the Schofield case. For those reasons Mr Toomer is afforded a considerable discount from our starting point.

[61] According, we impose a 1 year and 2-month (14 months) disqualification.

[62] So that Mr Toomer has sufficient time to determine new arrangements for the kennelling and/or training of his greyhound(s), the disqualification comes into effect 14 days from the publication date of this decision.

Disqualification of Greyhound

[63] Pursuant to r 61.4 we disqualify MARGAUX from Race 1 at the race meeting conducted by the Waikato Greyhound Racing Club at Cambridge on 10 September 2020. We also order repayment of the 4th place stake of $80.

Costs

[64] The RIU have not sought costs and there is no order for Judicial Control Authority costs as the hearing took place on a race night for which the Committee were rostered to work.

Dated at Auckland this 3rd day of November 2020

Gavin Jones

(Chairman)

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