EX TEMPORE DECISION SEVERITY APPEAL. DECISION 1. Appeal dismissed 2. Penalty of 12 months disqualification imposed 3. Appeal deposit forfeited

Transcription

1 RACING APPEALS TRIBUNAL NEW SOUTH WALES TRIBUNAL: MR D. B. ARMATI EX TEMPORE DECISION APPEAL OF MR NATHAN GOODWIN BREACH OF RULE 95(8) OF THE GREYHOUND RACING RULES SEVERITY APPEAL DECISION 1. Appeal dismissed 2. Penalty of 12 months disqualification imposed 3. Appeal deposit forfeited Wednesday 11 October The Appellant, licensed trainer Mr Nathan Goodwin, appeals against a decision of the stewards of Greyhound Racing NSW of 16 August 2017 to 1

2 impose upon him a period of disqualification of twelve months for a breach of rule 95(8)(a). 2. In their letter of 16 June 2017 the stewards set out the nature of the charge and the parts of rule 95 upon which they relied in the following terms: R95(8) The Controlling Body may impose on a person any 1 or more of the penalties referred to in sub-rule (1) if (a) the person has been convicted of an offence by any court and the Controlling Body is satisfied that (i) the nature of the offence is such that the person's continued participation or association with greyhound racing would be detrimental to the proper control and regulation of greyhound racing; or (ii) the continued enjoyment of the rights and privileges conferred by the person would be prejudicial or contrary to the interests of the Controlling Body. That letter of 16 June 2017 continued: I have been advised by the RSPCA that on 29 May 2017 in Kempsey Local Court you were convicted of an offence under section 5(3) of the Prevention of Cruelty to Animals Act 1979 and fined a sum of $1,200 for a failure to provide veterinary treatment. That letter later continued: The nature of the offence committed by you is failing to provide veterinary treatment when necessary. These actions were directly associated with the welfare of a greyhound in your care. I am of the view, as is GRNSW and the industry, that there is no place in greyhound racing for animal cruelty including failure to provide proper care and treatment. Such conduct is clearly detrimental and contrary to the interest, welfare, image, control and promotion of greyhound racing. 3. Having specified those particulars, it is noted that the actual failures were not documented. In any event, after due process and the making of submissions and the consideration of those submissions, the decision of 16 August 2017 was issued. 4. The Appellant admitted to the stewards that he had breached the rule. On lodging the appeal, the Appellant admitted that he breached the rule, and 2

3 this is a severity appeal only. The necessity, therefore, to canvas facts in greater detail falls away. 5. The breach of the rule having been admitted, it is not necessary to dissect it, or the given particulars, in great detail. In summary, the matters to establish the offence are there and contained in the particulars. 6. The facts are that the Appellant has been associated with greyhound racing all of his life. He is currently 39 years of age. He tells the Tribunal today that he commenced as a race caller at the age of 10, and that he called races until he was 16. He then became licensed as an attendant. He then obtained his drivers licence. At the age of 19 he was a bookmaker. He became a lure driver and a starter, and has continued his association with the industry as a licensed trainer for some years. He was in Queensland for a period of time. About four years ago he transferred to Kempsey, where he acquired a 100-acre property and carried out substantial renovations to that property, building a complex comprising 30 kennels and 15 rearing yards, together with a training track. At the time of his disqualification he had 30 greyhounds in training and 20 greyhounds in the rearing yards. 7. One of the greyhounds in his care was owned by a Queenslander. That dog, on 22 April 2016, was involved in a dog fight and suffered injuries. It is those injuries, and the treatment which was not provided, which have led to the prosecution in the Local Court and the actions of the stewards. 8. In evidence there are photographs. As is often the case, photographs of injuries are highly prejudicial. This case is no exception. The photographs show, consistent with the evidence, what, in the Tribunal's opinion, can only be assessed as substantially serious and troubling injuries to the greyhound. 9. To put the balance of the evidence in context, it is noted that for a period of time the Appellant treated the greyhound himself, until 9 May 2016, when it was taken to a veterinarian for treatment. The nature of the injuries as at the presentation to the veterinarian on 9 May 2016 were described as "wound over left shoulder, full thickness and 4 centimetres wide and 11 to 12 centimetres long". It then had a purulent exudate around the edges over muscle layers. Wound of the right-hand side chest wall about 1 centimetre and 2 centimetres. That was healing. Some puss was exuded. It also had a deep wound over its right shoulder 2 centimetres in diameter, with lots of purulent exudate from that wound. There were other multiple healing or healed wounds over the back of the right elbow and over its back. A summary of the diagnosis was: multiple open wounds from dog fight, some of which are infected. 10. A treatment plan was immediately embarked upon. That was for pain relief and the use of antibiotics, and it was necessary for the greyhound to receive a substantial range of treatments involving a period of surgery after 3

4 anaesthesia, injections of various types, namely, Tergive, ketamine, diazepam and Noroclav. Suturing took place, and treatment continued until 2 June. The dog was, according to the veterinary report (exhibit R4, of Deagon & Sandgate Veterinary Practice's Vetwell of Deagon in Queensland) treated on nine occasions prior to discharge. 11. The Appellant was interviewed by an RSPCA inspector on 10 August 2016 in the company of a GRNSW inspector. In the course of that interview, which extends for 76 pages, of which 54 are relevant to this matter, the Appellant voluntarily and co-operatively spoke to the inspectors. 12. There are a number of matters to be extracted from that interview. Firstly, the Appellant provided treatment to the greyhound which essentially, to summarise it without great accuracy, as it is a penalty matter only, involved him bringing the greyhound down from the kennels to be closer to the area where it was subsequently treated. It was first sprayed with kerosene, which the Appellant was of the opinion would dry out the wounds and stop infections, acknowledging that that was an old-school remedy. It was quite apparent to him that that led to an immediate skin reaction, and he ceased that treatment and commenced treatment with Debrisol. He then provided the greyhound with penicillin and Amoxicillin, which are antibiotics. He had those antibiotics at his establishment, having previously purchased them from veterinarians, as he could do. They were unlabelled at the time, as they could be. 13. It is apparent that the Appellant is not a trained veterinarian. The adequacy or otherwise of the treatment he gave has not been the subject of reports by veterinarians, but it is questionable as to whether or not that was either adequate or appropriate. Nevertheless, that treatment was given. 14. In addition, he tells the Tribunal today that he took the dog to the beach regularly to bathe it, to deal with both its movement and to aid in its healing. He says that he provided treatment to the dog on a more than daily basis. 15. The provision of that treatment must be seen in the light of his own perception of that which this dog suffered and that which he was doing. He was of the opinion that the wounds were superficial. He was of the opinion and he told the owner accordingly, having reported the injury to him that he could treat the dog at his kennels and over a period of time, a number of weeks, fix the dog up, to use the Tribunal's terms, or, as he said at transcript page 12, "I'll be able to fix him up." That would essentially be by way of healing, in conjunction with the treatment that he was providing. There was even discussion about a need for skin grafts, a matter which was raised by the owner and which the Appellant considered to be a somewhat pedantic approach. It is noted that the veterinarian subsequently attended to that. 4

5 16. Though driven by a continued belief that that which he was doing was adequate, he nevertheless conceded to the inspectors that it was the worst wound of a dog that he had seen although the inspectors were able to say they had seen a lot worse. 17. As to the aspects of pain, he did not have, nor was the dog administered, any pain relief. It is open issue as to whether or not he was of any opinion that the dog was in pain. He said he did not know how to detect pain, but was not of the opinion that the dog was in such pain, despite his lack of training, that he felt anything was needed for it. He conceded that the dog was suffering; and later, having made that concession, he was asked this question: It's in some sort of pain? He answered: Yeah. And later: He was definitely suffering. 18. Having undertaken that record of interview, he was prosecuted at Kempsey Local Court and, on a plea of guilty, convicted and fined $1,200 on 29 May The facts sheet supporting the plea is in evidence. 19. The Appellant was not known to the RSPCA and, it is apparent on the facts that are here, is not known for anything similar with GRNSW. 20. A veterinary report of a Dr Morgan at Sandgate Veterinary Hospital was before the Local Court. To summarise, the key facts are: the failure to provide necessary treatment; full thickness wounds; severe infection; pain and discomfort; 30 days of treatment to clear; two surgeries for the wounds to be sutured and fully healed; and, critically, this: If the dog had been treated immediately, the likelihood of the wounds healing after the first surgery would have been far greater; also, the infection would have been most likely avoided with antibiotic treatment. If treatment was administered immediately after the fight, this would have saved it from the extended pain and suffering it had to endure. 21. There is, of course, some issue about the accuracy of Dr Morgan's report in respect of antibiotic treatment. Nevertheless, it is apparent from the admission documents of Deagon & Sandgate, earlier referred to, that the treatment had not been sufficient. 5

6 22. Subsequently, the inspectors reported to the stewards, who conducted their inquiry by paper and came to the decision that they did. 23. In his submissions to the stewards which are essentially repeated today and need not be referred to further, other than the consistency of the approach adopted by the Appellant (to which the Tribunal will return) he was supported by two referees. 24. The first is Robyn Hudson of 25 June 2017: known him for 39 years; aware of the conviction; that the Appellant is the trainer of dogs of hers for more than 30 years; every confidence in him and in his manner of training and caring for the dogs, even if they are injured; he always has medical supplies on hand; he is an honest, respectful, reliable and hardworking man, with an ability to relate with people and dogs. 25. The second is Daniel Abela of 25 June 2017: known him for four years; aware of the charges; seen him attentively care for many dogs in his care; and considers it out of character that he would not administer the correct amount of care required. He refers to several dogs of his in the care of the Appellant, that he is a frequent visitor to his property; observed him meeting all regulatory standards and keeping all necessary medical records and supplies; and he is a hard worker. 26. Importantly, in relation to subjective facts, in addition to those to which reference has been made, there is the fact that the Appellant expresses remorse and devastation for his failures. He does so in the context that greyhounds have been his life, and he is concerned that the reputation which he established has been destroyed. The Tribunal will return to that. 27. He says, importantly, that he has learnt from his failure on this occasion, and that this type of thing will not occur again. He refers to the hardship to which he has been subjected by reason of the disqualification. The Tribunal has referred to those matters. His correspondence refers to his financial difficulties, which are not unsurprising in respect of the removal of his income and difficulty that will necessarily follow for all types of financial commitments that members of the community have. He also refers to the hardship to which he has been subjected by his necessary removal from the subject property because Mr Abela, the referee, continues to rear greyhounds at the Appellant's training establishment. He therefore has difficulty in visiting relatives who live on the property, with their various disabilities, which need not be set out. 28. Importantly, the Appellant has emphasised in his submissions that he did care for the greyhound; that he did so in the belief that what he was doing was appropriate; but now he has a greater understanding of the need for the taking of a greyhound to a veterinarian where there is an injury. Lastly, he says he is a good person with the right intentions for the industry, and repeats his remorse. 6

7 29. The decision requires a standard approach. The first is to determine the objective seriousness of the breach, and then to determine whether there should be any reduction by reason of subjective circumstances. In certain cases, subjective facts cannot outweigh the need for an appropriate penalty because of the gravity of the objective facts of the case. 30. In this matter it is to be noted that the function which the Tribunal is invited to embark upon on behalf of the Respondent is to find that the penalty of twelve months disqualification that the stewards found appropriate should be maintained. It is said that they looked at the objective facts and then made an allowance for the subjectives to determine a period of twelve months. The Appellant, in his written submissions, has sought that he be suspended, not disqualified. 31. The facts of this matter raise issues which, in the Tribunal's opinion, are of considerable seriousness. The wounds which this greyhound suffered were severe. They were not fatal. The greyhound was saved. It apparently has returned to some degree of normality. As the Tribunal said earlier, the photographs do not depict a very kind picture of the Appellant's assessment of the injuries. Not only was the greyhound injured substantially; it was undoubtedly in pain and would have been extremely unwell from the infections which were raging through its body as a result of the inappropriate treatment to which it was subjected. 32. The Tribunal assesses the breach as objectively very serious. 33. So far as the subjectives are concerned, there has been an admission of the breach of the rule from the outset, reinforced in this case by the plea of guilty in the Local Court. That has, in the last number of years, attracted a discount of 25 per cent, and that is appropriate here. 34. The Appellant has been associated with the industry, and he is entitled to be recognised for the work he has done in the industry. That is a strong subjective factor. He has devoted himself to the industry and set up a not insubstantial establishment. The Tribunal accepts financial hardship will be occasioned by his inability to earn an income from it. Importantly, he has learnt his lesson. The need, therefore, for a message to be given to him for what is described in other places as specific deterrence, is much diminished. 35. However, to return to the objective seriousness, there is need for a clear message to be given to the community at large, whether they be other licensed trainers or those associated with the industry, such as owners, and for a clear set of guidelines to be given to regulatory officers, whether they be stewards or inspectors and the like, that this type of conduct cannot be accepted. The stewards, in their decision, quite clearly reflected upon the issues of the integrity of the industry and maintenance of the highest 7

8 standards of welfare and protection of the greyhounds that are involved with it. 36. The slight difference in this case and it might be assessed as a subjective matter, but it also has an impact upon the objective seriousness is the fact that the Appellant did not ignore the greyhound's injuries. He embarked upon a course of treatment which has now been found to be, and he accepts as, misguided at least in a genuine belief that what he was doing was appropriate. It is not, therefore, a case of the gravest neglect. 37. What then of parity? 38. Four specific cases have been put to the Tribunal, and within those two others are referred to. 39. The first in time is the decision of Justice Kavanagh of 6 June 2011 in Cheney. That case involved multiple charges, including, relevantly, failure to ensure that a greyhound did not suffer heat stress when produced at a racing event. The greyhound subsequently died. Justice Kavanagh reflected upon the need for a clear message, even for a person of 30 years training, with an unblemished record and no other cases of neglect in respect of greyhounds, with strong character evidence all matters which exist here. A nine-month disqualification was imposed. 40. The next is the case of Silver, a decision of stewards of 25 July As a result of kennel inspections, a number of charges were laid. The one that is relevant is failure to obtain veterinary care charge 4 as it was before the stewards to prevent pain and suffering being occasioned to a greyhound, in circumstances where a greyhound was very lame and in marked pain and discomfort. In that matter, essentially that there was a failure to obtain immediate veterinary care, and a nine-month disqualification was imposed, from a starting point of twelve months and reduced by 25 per cent for a guilty plea. 41. The next matter is that of Baskett, a decision of stewards of 21 September This was another lameness case, with a plea of not guilty entered before stewards. Some treatment was provided, there was consultation with a naturopath and plans to then seek veterinary attention, by a person who always cared for his greyhounds. That lameness required urgent veterinary treatment. There were personal circumstances, and no prior precedents. In respect of the lameness matter, there was a six-month disqualification; for pain and suffering, nine months disqualification, to be served concurrently. 42. The last is Dupuche, a stewards' decision of 16 June It involved lameness, aggravated cruelty and failure to provide veterinary treatment. There were deep concerns about the welfare of the animal, remorse, and 8

9 personal circumstances. No prior antecedents were raised the same as here. In that case, there was failure to provide treatment or veterinary care for more than two weeks after symptoms had been displaying for some eight seeks, with significant unnecessary pain and suffering. The greyhound subsequently died. A 15-year disqualification was imposed. There were aggravating factors which, it is accepted, do not exist here. 43. In the course of various of these decisions, the fifth and sixth precedents have been raised. 44. The first is Fisher, a Racing Appeals Tribunal decision, undated, rule 106: unnecessary pain and suffering, nine months suspension. A greyhound had been left unattended in a hot car for 15 minutes. 45. The other matter is Hogan, a Racing Appeals Tribunal decision, undated, again rule 106: not providing necessary veterinary attention for a broken hock, but some treatment given at home; a disqualification of ten months. 46. Those, then, are the parity cases. As has been said, some of them contain similar matters to those here. The key factors, however, in respect of objective seriousness, have been summarised. 47. In the Tribunal's opinion, a penalty greater than 16 months should have been the appropriate starting point to be considered. From that, there is to be a deduction of 25 per cent for the plea of guilty, and a deduction in respect of the personal circumstances that have been highlighted. 48. The other matter is that there is not a need for a personal message to be given to this Appellant to cause him to change his ways, but balancing that, as the Tribunal has said in summarising that greater period of 16 months, is the need, in particular, for a message to the community at large. 49. The Tribunal, therefore, if it was to consider the matter independently of the submissions made, would consider a penalty of disqualification of greater than 12 months at the end of the day would have been appropriate. In those circumstances, the submission by the Appellant that a suspension is appropriate simply cannot be accepted. 50. At the outset of the matter, the Tribunal was advised that the penalty of 12 months disqualification thought to be appropriate by the stewards should be that which the Tribunal considered appropriate. The submissions for the Appellant having been considered, the Tribunal sees no reason now to depart from that order. 51. In the circumstances, the severity appeal is dismissed. 9

10 52. The order of the Tribunal is that there be a period of disqualification of 12 months. There having been no stay, the date of commencement of that period appears to be the date of the stewards' decision, that is, 16 August There being no application for a refund of the deposit it is the order of the Tribunal that the appeal deposit be forfeited. 10