South Australia’s Racing Appeals Tribunal has cited the fact that Greyhounds Australia’s (formerly ANZGA) Drug Withholding Guidelines are flawed as reason enough to reduce South Australian greyhound trainer Raye Kelly’s disqualification from seven months to just four.
In December 2008 Raye Kelly was handed a seven month disqualification for presenting Flame McBain to race at a Port Augusta Greyhound Racing Club meeting on the 11th October 2008, when Flame McBain subsequently tested positive to the anabolic steroid Stanazol; becoming South Australia’s first greyhound trainer to be convicted of producing a greyhound to race under the influence of an anabolic steroid.
That inital finding was handed down at a GRSA Stewards Inquiry on the 24th December 2008 in which Raye Kelly pleaded guilty.
Raye Kelly subsequently appealed the severity of the penalty to the South Australian Racing Appeals Tribunal, citing the fact that she used the anabolic steroid under direction and prescription of her Veterinarian, Dr. Arnold; that the penalty had adversely affect her health; that New South Wales GHRRA Stewards had handed out only a fine to Jimmy Magnisalis, NSW’s eighth anabolic steroid positive for a similar offence; that Jimmy Magnisalis had that fine further reduced on appeal; that other anabolic steroid disqualifications in other states had ranged from five to six months, not seven months; and that Greyhounds Australiasia has not provided any withholding guidelines for Stanazol to help greyhound trainers.
Of all the compelling arguments put to the tribunal by Raye Kelly’s counsel, Mr M Giorgio; the one that carried the most weight was the fact the Greyhounds Australasia has erred in not providing greyhound trainers with drug withholding guidelines for anabolic steriods, or in this case specifically, Stanozol.
South Australian Racing Appeals Tribunal President Mr C R Lee and Assessor Mr L Chapman came to the “view that the absence to this point of a guideline for Stanazol should be treated as mitigating the gravity of the appellant’s offending and as justifying a reduction in the period of disqualification that she is required to serve”.
Further, they determined that “no guideline for Stanazol exists in South Australia. Moreover, as pointed out by the appellant, Stanazol does not appear in the Greyhounds Australasia (ANZGA) withholding guidelines”.
Subsequently the South Australian Racing Appeals Tribunal reduced Raye Kelly’s disqualification from seven months to just four, while equally being concious that “the penalty imposed must be sufficient to maintain public confidence in the industry. The penalty must also operate as a personal and general deterrent, that is, as a clear warning to the offender and others that they must be especially vigilant to ensure that therapeutic substances are administered sufficiently far in advance of a race to avoid the risk of a positive swab”.
Of significant importance was the observation that in the opinion of the South Australian Racing Appeals Tribunal ,the case of Jimmy Magnisalis in New South Wales and the imposition by GHRRA stewards of only a fine instead of a disqualification “may have created an unfortunate precedent”.
Clearly the South Australian Racing Appeals Tribunal have sent a message to Greyhounds Australasia, and consequently state regulatory authorities, that if they want to implement far reaching policies and subsequent penalties; there falls on them some reponsibilty to educate their participants on how to effectively avoid falling foul of those policies by providing detailed guidelines.
Given that the original Drug Withholding Study was commisioned fourteen years ago and was only marginally revised seven years ago and does not include any witholding guidelines for anabolic steroids, the message to Greyhounds Australasia is clear; “Get off your asses and help your greyhound trainers, don’t just impose regulations against them”.
For those detail minded, the full transcript is reproduced below:
RACING APPEALS TRIBUNAL
DATE: TUESDAY, 24 FEBRUARY 2009
TRIBUNAL: PRESIDENT: MR C R LEE
ASSESSOR: MR L CHAPMAN
MR T HAYLES, APPEARS FOR GREYHOUND RACING SA LTD
MR M GIORGIO: APPEARS FOR APPELLANT
APPELLANT: MRS R KELLY
IN THE MATTER of an Appeal by RAYE KELLY against a decision of Greyhound Racing SA Ltd Stewards.
BREACH OF RULE: GRR 83 (2)
Rule 83: (2) The owner, trainer or person in charge of a greyhound –
nominated to compete in an Event;
presented for a satisfactory, weight or whelping trial or such other trial as provided for pursuant to these Rules; or
presented for any test or examination for the purpose of a period of incapacitation or prohibition being varied or revoked
shall present the greyhound free of any drug.
PENALTY: DISQUALIFICATION OF LICENCE FOR 7 MONTHS
The appellant is the holder of an owner/trainer’s licence. On 11 October 2008, she presented the dog FLAME MCBAIN to race in Race 5 at a meeting of the Port Augusta Greyhound Racing Club. The race was the Northern Exchange Hotel Oaks. The dog won the race and was subjected to a routine swab. Samples of the dog’s urine were sent to Melbourne for analysis.
On 13 November 2008, Racing Analytical Services reported that the samples had tested positive to a substance known as 6 alpha-hydroxystanozolol. The substance is an anabolic steroid, which is a drug within the definition of that word in Rule 1 of the Greyhound Racing Rules. Rule 83 (2) of the Rules requires a racing greyhound to be drug free.
On 8 and 24 December 2008, the stewards conducted an inquiry on the basis of the report and charged the appellant with a breach of Rule 83 (2). The appellant pleaded guilty to the charge. After hearing the appellant’s submissions relating to penalty, the stewards determined that she be disqualified for a period of 7 months. The appellant’s appeal is against the severity of that penalty. As required by the Constitution of the Tribunal, the appeal will be conducted as a rehearing of the evidence.
The following further information about the case emerged at the inquiry before the stewards.
During a race on 25 June 2008, FLAME MCBAIN sustained a tear in the hip support muscle, and was unable to race again for 10 weeks. The appellant sought veterinary treatment from Dr Chris Arnold. Dr Arnold saw the dog on 30 June 2008, 14 July 2008 and 28 July 2008. On the second of those occasions, namely 14 July 2008, the appellant purchased four stanazol injections, each of 0.5 mls, from Dr Arnold.
Stanazol is a therapeutic prescription drug which converts to 6 alpha-hydroxystanozolol in the body of the greyhound. So Stanazol is an anabolic steroid. The only registered veterinary preparations of Stanazol in Australia are water based. Other anabolic steroids are often suspended in oil to enhance longevity after they have been administered.
Dr Arnold was called by the stewards to give evidence at the inquiry. He told the stewards that the appellant would have asked him whether something like Stanazol would help the dog regain muscle mass and return more satisfactorily to racing. Dr Arnold said his answer would have been “Yes it could help and be worth trying but be careful”. Dr Arnold and the appellant both told the stewards that Dr Arnold’s advice to the appellant was that retention of the drug in the animal would be four to six weeks. Dr Arnold said he would have cautioned the appellant: “be careful, the onus is on you”.
Dr Arnold had this to say about the place of Stanazol in the treatment of greyhounds:
“Stanozol is totally legal product it has merit it is used consistently it has been for twenty years and it still will be, as it is a genuine therapeutic product that has its place in greyhound racing and it still will have. It just can not turn up in a racing day, right. So, and I will still use it and I’m sure it will still be widely used in many animals that have long term injuries that need some part of therapy”.
The appellant’s evidence to the stewards was that she administered injections of Stanazol at five day intervals on 14 July, 19 July, 24 July and 29 July. She said that she did so in line with advice, which she researched on the internet, of a prominent greyhound vet, Dr Jim Gannon:
“Anabolic Steroids will prevent loss of muscle, weight and performance. Try Stanozol, 0.5 mls into muscle once each 5 days…………”
When Dr Arnold last saw FLAME MCBAIN on 28 July 2008, the note that he made was: “ready for some strong galloping now.”
The appellant’s evidence was:
“On the 28th July Chris advised FLAME could recommence training that was three hundred metre straight track work every second day for ten days then onto circle work. It did not enter my mind I had a problem in allowing FLAME MCBAIN to race. I was well aware the winners of the Port Augusta Oaks and Derby events on the 11th October would be swabbed as these were the feature races of the day”.
So the appellant was saying she thought she would have no problem with racing the dog on 11 October, given that her last injection of Stanazol was on 29 July. The lapse of time between those two dates was 10 weeks and 4 days, which was well outside the withholding period of four to six weeks recommended by Dr Arnold.
However that may be, an important additional fact before the stewards was that the dog’s first race after the injury was on 3 September, which was only five weeks and one day after the last injection of Stanazol. Assuming that the last injection of Stanozol was on 29 July as the appellant asserts, it must be said that her decision to race the dog on 3 September demonstrated at best a level of careless behaviour on her part. Although not the subject of any charge, the appellant’s decision to race the dog on 3 September 2008 has a relevance which I will mention later in these reasons.
At this point, I need to make some general observations about the requirement in the Rules that greyhounds presented to race must be drug free.
The use of a therapeutic substance, like Stanazol, in an injured dog to build muscle bulk and to prevent or diminish loss of performance, although not of itself illegal. becomes illegal if the substance remains in the system of the dog at the time that the dog is presented to race. A racing dog with a therapeutic substance in its system gains an unfair advantage over other dogs in the race. This unfairness to other competitors provides the essential rationale of the rule. It exists regardless of whether the offender intended to gain an advantage, and regardless of whether the offender acted on veterinary advice.
If stewards fail to take a serious view of a positive swab, public confidence in the integrity of the industry will be diminished as a result. So the penalty imposed must be sufficient to maintain public confidence in the industry.
The penalty must also operate as a personal and general deterrent, that is, as a clear warning to the offender and others that they must be especially vigilant to ensure that therapeutic substances are administered sufficiently far in advance of a race to avoid the risk of a positive swab.
These are objective considerations. Circumstances of the offending such as lack of specific intent and reliance upon veterinary advice are subjective considerations. The offender’s personal circumstances, such as good record and good character, are also subjective considerations. Subjective considerations must be given weight in the assessment of penalty, but they should not be allowed to diminish the importance of the objective considerations.
A further reason for making a positive swab the sole objective ingredient of the offence is that attempts by an offender to avoid responsibility, as with assertions regarding his or her state of mind and the date when the drug was last administered, are usually uncorroborated. In other words, they are usually unsupported by independent evidence.
From these general observations, I return to the submission of the appellant’s counsel that a disqualification of seven months was excessive in all the circumstances.
I do not give the appellant credit for reliance upon veterinary advice. Clearly she disregarded the same advice not long before the race in question, which was when she presented the dog to race on 3 September 2008.
The appellant is entitled to credit for her prompt admission of guilt, and for her good record and character.
As for the appellant’s ill-health at the time, I do not have any evidence that the emotional impact of the swab and the disqualification, though great, was greater than would have been the case in any event.
Although some measure of consistency of penalty is desirable, as far as I am aware this is the first occasion in South Australia that the use of Stanazol has come before the stewards. It is apparent from a list supplied to me that disqualifications imposed since 1979 with respect to other drugs have fallen mainly in the range of three to six months, albeit that there are a few examples both below and above that range.
A list of penalties in other states with respect to Stanazol has also been supplied to me. Disqualifications of five and six months have been common, but I know nothing about the circumstances of the cases. The appellant’s counsel referred me to two particular tribunal decisions, but in the case of Robarton in Queensland the drug was administered by a veterinary surgeon and the offender acted solely on his advice, and in the case of Magnisalis in New South Wales the tribunal said that the imposition by stewards of a fine instead of a disqualification may have created “an unfortunate precedent”.
Although nothing that I have said to this point is sufficient to persuade me that the stewards erred in the penalty that they imposed, I need to qualify the observations that I have made about the objective considerations, at least in so far as they apply to the offending in this case. Given that it seems to be common ground that withdrawal periods vary significantly from drug to drug and dog to dog, and given further that the therapeutic use of drugs outside the withdrawal period is permissible in the industry, there is a compelling case in my opinion for the preparation and dissemination to owners and trainers of officially sanctioned guidelines about withdrawal periods for particular drugs.
In her written submissions to the stewards, the appellant referred to comments by Dr Des Fegan under the heading “Withholding Guidelines” in the National Greyhound Form of 4 December 2008. The comments are worth repeating:
“With significant recent changes to the rules and a raft of new medications coming on to the market, it is (maybe) time for the controlling authorities to look at commissioning some further studies to help the industry educate itself.
It may come as a surprise to many trainers that drug companies are not obliged to provide any withdrawal guidelines for dogs for their products. However, they do have to provide such information to the farming community for medications used in food producing species.
Unless veterinarians have a reference, such as the ANZGA withholding guidelines, then in most cases we are providing an educated guess, which may or may not be correct.
Basing our guess on what occurs in humans or other species is more often than not incorrect.”
Whatever the position with other drugs, no guideline for Stanazol exists in South Australia. Moreover, as pointed out by the appellant, Stanazol does not appear in the ANZGA withholding guidelines mentioned by Dr Fegan. In the end, I have reached the view that the absence to this point of a guideline for Stanazol should be treated as mitigating the gravity of the appellant’s offending and as justifying a reduction in the period of disqualification that she is required to serve.
In the result, the appeal will be allowed, and there will be a determination that the period of disqualification be reduced from seven months to four months.
Before concluding, I mention an additional matter that was raised during the hearing of the appeal. As reported in the “Kennel Capers” newsletters of 7 and 14 August 2008, Greyhound Racing SA is now offering trainers the opportunity to obtain a screening of non-raceday samples. Approval must first be obtained from the stewards. The cost is $200. Results are to be reported within 7 to 10 days, and the dog is to be prohibited from entering into an event in the meantime. The stewards did not place any reliance upon the procedure In the appellant’s case, but perhaps in time the availability of an elective testing procedure at an affordable cost will emerge as a factor in the assessment of a penalty for a breach of rule 83(2).
There will also be a direction that the bond be refunded to the appellant