On the 27th of February 2014, the Racing Appeals Tribunal NSW (Tribunal) upheld greyhound trainer Wayne Vanderburg’s appeal against the concurrent seven year penalty handed down in relation to the positive drug tests for greyhounds Pink Sock and Where’s Dobie.
Vanderburg’s penalty has been slashed from seven years for each offence to just two years and three months, to be served concurrently. This represents less than half the original penalty. The penalty starts from the date Vanderburg was first suspended (19 December 2012).
Effectively, Vanderburg can apply to Greyhound Racing NSW (GRNSW) for his training licence in March 2015.
At a stewards inquiry concluded in December 2013 (Inquiry), Vanderburg was found to have breached Rule 83(2)(a) (Rule) on three occasions and disqualified for a period of seven years for each charge, to be served concurrently. Vanderburg entered a plea of guilty to all three charges.
The Rule requires participants to present greyhounds free of any prohibited substance.
At the Unibet Gardens meeting on 25 February 2012, post race samples were taken from two greyhounds trained by Vandenburg:
- Pink Sock;
- Where’s Dobie.
A pre and post race sample was also taken from Pink Sock at the Unibet Gardens meeting on 31 March 2012.
All samples returned a positive to ethanol metabolites. Ethanol (alcohol) when administered to a greyhound breaks down into two components:
- Ethyl Glucuronide (EG); and
- Ethyl Sulphate (ES).
At the time the samples were taken, GRNSW did not have an established threshold level for EG and ES in greyhounds nor did they have integrity tests for this type of substance. Those tests became available and confirmatory analytical tests were available sometime later.
As part of the evidence gathering process, GRNSW subjected Pink Sock and Where’s Dobie to kennel tests and then seized them to undertake laboratory tests in order to determine the resting levels of EG and ES in each greyhound.
The resting levels for each of the greyhounds were established as follows:
- Pink Sock (EG: 0-5.6 and ES 0-2.38)
- Where’s Dobie (EG: 0-22.2 and ES: 0-0.02)
After the fact, GRNSW established threshold guidelines for ES and EG. The upper threshold for each was fixed at 20 micrograms. These levels were not fixed at the time Pink Sock and Where’s Dobie were swabbed.
Levels greater than 50 were detected in the samples taken by the greyhounds at Unibet Gardens.
The Tribunal considered a number of matters before making its determination. These are summarised below. The Tribunal made it clear that its function is not to punish but to act in a protective way with the function of industry integrity paramount.
1. Alcohol – Stopper or Enhancer
The Tribunal agreed that the levels of greater than 50 detected in the race samples were high readings. It didn’t matter if they were compared against the resting levels or the now established threshold of 20, the level of 50 exceeded both.
The Tribunal noted that no research has been undertaken into how alcohol affects a greyhound’s demeanour or behaviour. The level it becomes a stopper is not established by research. Dr Rowland (Greyhound Racing Vet) said that it would have to be at a low level to be an enhancer.
The Tribunal turned its mind to whether the presence of alcohol in Pink Sock and Where’s Dobie acted as a stopper or enhancer on the basis of their race performance.
The Tribunal noted that there was “no summary of observations made by the Stewards of the day in respect of the run of the dogs in the races”. However, the opinion of the Stewards is subsequently reflected in the decision made in the Inquiry and came from viewing a replay of the races.
The races were replayed before the Tribunal and before Dr Rowland. Dr Rowland was asked questions and asked to provide observations so that the Tribunal could form its own opinion.
In relation to Where’s Dobie’s performance at Unibet Gardens on 25 February 2012, Dr Rowland observed that the greyhound displayed a lack of co-ordination and was distinctly compromised. The greyhound was only visible as it left the boxes and was so far behind that it did not appear in the footage of the race until it went past the winning post and either slipped or fell into dogs coming into the catching pen.
In relation to Pink Sock’s performance at Unibet Gardens on 25 February 2012, Dr Rowland observed that the greyhound appeared to be highly affected.
In relation to Pink Sock’s performance at Unibet Gardens on 31 March 2012, the greyhound slipped sideways out of the boxes and checked the greyhound in box seven. Pink Sock nearly fell but regained its feet and ran on. The Tribunal noted that the greyhound had performed in a trial on 24 March 2012. As a result of the trial and the time recorded on 31 March 2012, it had improved by 16 lengths in the time ran in those two events against its time on 25 February 2012.
The Tribunal concluded that Pink Sock and Where’s Dobie were adversely affected in the races conducted on 25 February 2012, but Pink Sock was not adversely affected in the race conducted on 31 March 2012.
2. Applicability of GRNSW Guidelines
The Tribunal noted that GRNSW has now established guidelines that set the threshold levels for EG and ES. At the time the samples were taken from Pink Sock and Where’s Dobie, these guidelines were not published, were not operable and were not being used.
The Tribunal stated that as the guidelines were not in operation at the time the samples were taken, they were not applicable to the proceedings.
3. Integrity / Protection of the Industry / Animal Welfare
The Tribunal noted that there was great public concern around animal welfare and prohibited substances. The Tribunal evidenced this by referring to the current Parliamentary Inquiry into Greyhound Racing in NSW and commentary on Facebook.
In relation to integrity and protection of the industry, the Tribunal noted that there were no betting plunges and no evidence of any untoward betting.
The Tribunal stated the following in relation to animal welfare:
It would be fair to say that any right-minded person having been informed that a dog was being dosed with what appears to be high levels of alcohol would view that to be a shocking matter, raising deep concerns, and those concerns could be so grave to have catastrophic consequences for the industry at times when welfare of animals is so often the subject of concern.
It must be recognised that the substance in question does not appear to have come from the application of an illegal substance such as cocaine, amphetamines and others. Alcohol is a legal substance in the community. In certain circumstances, it may be proper to administer alcohol to a dog. There is no evidence before this Tribunal as to what those proper circumstances should be.
4. Submissions by Vanderburg on Penalty
Vanderburg submitted that the sentence of seven years for each offence was “grossly disproportionate.” The Tribunal was told that:
- Vanderburg has been a professional greyhound trainer for 24 years and up until his suspension in December 2012, had 30-40 greyhounds in training. He also had a considerable number of pups and engaged in the training of younger dogs and breaking-in of pups. He gave evidence of the money he was paid for his services (the Tribunal did not disclose the amount for privacy reasons).
- Vanderburg purchased his property with the intention of turning it into a first-class training facility. He gave evidence on money spent on improving the property for this purpose and the mortgage repayments. As a result of the suspension, “the phone stopped ringing” and income has now ceased and he cannot pay his mortgage and has to rely on friends assistance to make the payments.
- Vanderburg is trained as an apprentice plumber but cannot return to that industry due to his skills being out of date and a back disability. He has no other qualifications and does not know where his income will come from.
- Vanderburg has been emotionally impacted as a result of the ordeal.
- Vanderburg’s relationship broke-up (although he has subsequently entered into a new relationship). He has difficulties explaining to his children why he no longer trains dogs.
- Vanderburg provided character references from licensed trainer Ryan Treadway and Paul Freeman, who asked the Tribunal to extend leniency and stated that Vanderburg is someone who is honest, fair, transparent generous and a person of professionalism, integrity and who had genuine concern for the welfare of animals.
It must be pointed out that this case was not Vanderburg’s first breach of the Rule, it was his third.
5. Tribunal’s Observations on Penalty
The Tribunal noted that the current GRNSW guidelines, if they were to be imposed, could well lead to a period of seven years being considered appropriate. However, as mentioned previously, the Tribunal decided not to apply the guidelines. In determining the penalty, the Tribunal stated:
- In the absence of the guidelines, it is necessary to look at what the stewards and Tribunals have been doing with breaches of rule 83(2)(a). The evidence by GRNSW showed that there had been 170 breaches since 2009, of which only 11 resulted in disqualification of more than 12 months The highest disqualification imposed is one of three years.
- A penalty of three years has been considered to be the worst type of penalty appropriate for a breach of the Rule.
- As a result of the loss of income and no ability to gain an income, Vanderburg will be the subject of substantial financial hardship.
- Vanderburg’s personal concerns can be viewed at a more favourable level than someone who, for example, engaged in more substantial wrong conduct.
- Vanderburg’s character references are strong and cannot be disregarded.
- The other breaches occurred 13 years ago, so are not an aggravating factor.
- The delay the proceedings have taken should be considered in favour of Vanderburg. The delay arose in part to Vanderburg not being able to participate because of an injury. However, the larger portion of the delay is attributed to the GRNSW and its need to bed down the procedures now in place and to enable the tests and expert evidence to be conducted and finalised. The effect of the delay was to preclude Vanderburg from enjoying the benefit of the industry since he was suspended and as such he has suffered emotional harm and loss of income and reputation.
- Vanderburg entered a guilty plea. An admission of wrongdoing carries a discount.
6. Tribunal’s Conclusion
The Tribunal held that a discount of 25% is appropriate and will be applied. The Tribunal then stated it would not go beyond a consideration of three years as the highest penalty. This is what the Tribunal said:
This, in brief, is a new substance, or prohibited substance. It was a very high reading. There are integrity and animal welfare concerns. But the case cannot be viewed as a worst-case scenario which would warrant in the Tribunal’s opinion a consideration of the heaviest penalty imposed by the Stewards or Tribunal prior to the commission of the conduct the subject of each of these three matters. The Tribunal therefore will not go beyond a consideration of this matter of greater disqualification in each case of three years.
The Tribunal did not find that the matter was so disproportionately bad to all other matters up until that time that a period of seven years would be appropriate
The final penalty involved a balancing of the aggravating factors (high reading, integrity issues, animal welfare issues) and subjective factors (discount for plea, personal hardship, financial hardship, delay, strength of referees and contribution to the industry).
Where to from here?
If you have viewed the footage of the races in question, it is very distressing to see the impact of the administration of ethanol on Pink Sock and Where’s Dobie.
It is difficult to accept that someone who has presented a greyhound in such a state is then awarded leniency on the basis of their contribution to the industry. It can hardly be said that returning a positive drug test on a number of occasions is a positive contribution to the industry.
It can also be said that the financial and personal hardship suffered is something that resulted from Vanderburg’s own actions. It doesn’t seem fair that it is to be considered as something in his favour when assessing leniency as we should be held accountable for, and suffer the consequences of, our own actions.
Lastly, the decision demonstrates that GRNSW has to be more proactive in relation to measures surrounding prohibited substances. The Tribunal made it clear it would not apply retrospective measures. The delay it took to conclude the Inquiry was also a telling factor and another area of improvement for GRNSW to work on.