Suli v Queensland Racing Integrity Commission
[2024] QCAT 149
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- Unreported Judgment
- Suli v Queensland Racing Integrity Commission[2024] QCAT 149
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Suli v Queensland Racing Integrity Commission[2024] QCAT 149
Suli v Queensland Racing Integrity Commission[2024] QCAT 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Suli v Queensland Racing Integrity Commission [2024] QCAT 149 |
PARTIES: | Andrew george suli (applicant) v Queensland racing integrity commission (respondent) |
APPLICATION NO/S: | OCR096-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 11 April 2024 |
HEARING DATE: | 6 December 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kent |
ORDERS: |
|
CATCHWORDS: | ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where greyhound trainer failed to present dogs free of prohibited substances – where admitted failure to present a dog free of prohibited substances – where urine sample above the permitted threshold of a prohibited substance (Cobalt) – whether the appropriate penalty was suspension or some lesser penalty Greyhounds Australasia Rules, (then) rule 83(2)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Scott v Queensland Racing Integrity Commission (No 2) [2018] QCAT Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146 Darrel Graham v Queensland Racing Integrity Commission [2021] QCATA 125 Queensland Racing Integrity Commission v Scott [2019] QCATA 125 Hooper v QRIC [2017] QCAT 236 in Wallace v Queensland Racing [2007] QDC 168 Nicholl v Queensland Racing Integrity Commission [2023] Waldron v Queensland Racing Integrity Commission [2023] QCAT 191 Racing Victoria v Mitchell Freedman, 22 December 2021 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | R Anderson KC, instructed by D Silvester, Legal Services, QRIC |
REASONS FOR DECISION
Nature of Review
- [1]On 25 October 2022 the Tribunal issued the following direction: “This application is to proceed to a hearing in relation to the issue of penalty only”. Consequently, this matter was a review for the purpose of penalty only. A considerable proportion of the material filed, and the evidence given by the applicant and his witness, did not directly address penalty. Due to the nature of the material filed by the applicant, the respondent was placed in a position of responding to the applicant’s irrelevant material that did not go to penalty. Both parties indicated at the commencement of the hearing that they were aware that the only issue for the Tribunal to determine was that of penalty. I indicated to both parties that I would restrict my consideration to the issue of penalty only and these reasons address the issue of penalty only.
Summary of Events
- [2]Mr Suli is a licensed greyhound trainer. He was the trainer of two greyhounds called Lines, who competed in a race at Rockhampton Greyhound Racing Club on 6 October 2021, and Rockstar Lincoln, who competed in a race at Rockhampton Greyhound Racing Club 27 October 2021.
- [3]When both greyhounds were presented at the Rockhampton Greyhound Racing Club to compete in races on the dates referred to above urine pre-race samples were taken from the animals. Subsequently, upon analysis both urine samples were found to contain a prohibited substance, Cobalt, in excess of the mass concentration limit of 100 nanograms per millilitre. The evidence of this was the presence of 149 nanograms per millilitre of Cobalt in the urine sample taken from Lines and this result was more than the prescribed threshold. Similarly, the results of the urine sample of Rockstar Lincoln demonstrated a Cobalt result of greater than the prescribed threshold i.e. in this sample the result was >200 nanograms per millilitre of Cobalt in the urine of this greyhound. Therefore, both of the urine samples for the two dogs returned results that were more than the prescribed threshold for Cobalt.
- [4]Mr Suli was charged with two breaches of the Greyhounds Australasia Rules (‘GAR’) under (then) rule 83(2)(a)[1] which reads:
- The owner, trainer or person in charge of a greyhound-
- (a)Nominated to compete in an Event;
- (a)
- The owner, trainer or person in charge of a greyhound-
…
shall present the greyhound free of any prohibited substance.
- [5]Mr Suli entered pleas of not guilty to the two charges and on both was found guilty and penalties of 12 months suspension of Mr Suli’s licence, with six months penalty wholly suspended for a period of 12 months, conditional upon no similar breaches of the rules, were applied. The penalties were ordered to be served concurrently.
- [6]Mr Suli told the Stewards that he believed that the greyhounds had Cobalt in their system due to him feeding them a product, Winning Edge Platinum. He described this product as being fit for greyhound racing. He said that he had not presented his greyhounds with Cobalt in their systems.
- [7]After Mr Suli was found guilty of both charges, he requested an internal review of the decision of the decision of the Stewards. This internal review came to the same conclusion as the Stewards and maintained the same penalty.
- [8]Mr Suli then filed an application to review the decision in QCAT on 9 May 2022. On 1 June 2022, by consent of both parties, the Tribunal granted a stay of the Queensland Racing Integrity Commission’s (‘QRIC’) internal review decision pending the final determination or withdrawal of the application to review a decision that was filed by Mr Suli on 9 May 2022.
- [9]A Tribunal hearing of the matter took place at Brisbane on 6 December 2023 and written submissions were filed in the matter. The last of these was filed on 31 January 2024 by the applicant.
Evidence and Submissions
Evidence going to substantiation of the charges and not penalty
- [10]As stated in the Tribunal’s direction 1 of the direction issued on 25 October 2022, Mr Suli’s hearing only concerned the issue of penalty. Penalty alone was the matter that my consideration was confined to. Mr Suli filed material prior to the hearing that did not address penalty alone. On a number of occasions throughout the Tribunal hearing, the evidence of Mr Suli and of his witness, Dr Major, covered the area of substantiation of the charges. This information was irrelevant to the issue that the Tribunal needed to decide and both Mr Suli and his witness were advised of the parameters of the evidence relevant to the Tribunal.
Mr Suli’s Evidence and Submissions
- [11]Mr Suli accepted that he had been found guilty of two charges and it was his submission that he should receive no penalty at all. He submitted that it was not his fault that his dogs were found to have Cobalt in their system above the prescribed threshold.
- [12]In his affidavit filed in the Tribunal on 17 February 2023, Mr Suli attached as annexures to his affidavit what he described as six Stewards reports (Michael Lakey 11 April 2022; Tina Cotsiopoulos 13 April 2022; Beau Gorman 13 April 2022; Paul Jenkins 21 April 2022; Brad Hudson 16 May 2022 and Benny Crear 22 October 2022) relating to recent decisions made by Qld Stewards with respect to positive Cobalt swabs. Mr Suli believed that the penalties the parties received in these matters were not as onerous as the penalty he received. His submission was essentially that he should have no penalty imposed upon him.
- [13]From consideration of these reports, it is clear that in each of these matters, the parties named received a period of suspension of 12 months, in line with Mr Suli’s penalty. However, there were a number of very significant differences between Mr Suli’s case and these reports which he placed before the Tribunal in support of his argument that he should receive no further penalty. The significant differences included that although each of the parties received a penalty of a 12-month suspension, this was suspended for a period of two years. Additionally, each of the licensees named in the reports were fined an amount of money from $4,000 to $8,000. The penalty of a fine is absent in the case of Mr Suli.
- [14]The respondent’s submission was that the pleas of guilty and fines placed these reports in a different category to Mr Suli’s situation.
- [15]Although these reports do not have the status of being a precedent nor are they persuasive to the same level as a decision of a Tribunal, I considered the reports. However, I was unable to find them to be overwhelmingly comparative given their factual differences and the circumstances of mitigation as discussed above. There was no evidence from Mr Suli that these reports were the only relevant reports relating to greyhounds being presented with Cobalt in their system. However, even if it is accepted these reports are the only ones for the years they were delivered, there was nothing in that material that led me to believe that Mr Suli’s penalty was anything other than completely in the range for offences of this nature.
- [16]At the hearing, Mr Suli introduced the decision of Waldron v Queensland Racing Integrity Commission [2023] QCAT 191 (‘Waldron’). The respondent’s submission dated 17 January 2024 stated that the Waldron case was of limited relevance to the Tribunal due to the unusual nature of the case and the fact that no penalty was applied. It was submitted that this was in stark contrast to the vast majority of other cases in that area. In Waldron’s case, it was found that the applicant in that matter should not be held blameworthy in any way. This was based on all of the facts of that particular case: it was considered that there was no prospect of “doping doses” having been administered. In that case, this scenario was completely excluded. The respondent submitted that in Mr Suli’s case, there was no evidence to expressly rule out that there was no prospect of “doping doses” being administered. The analysis of the feed used in Waldron showed more than 19 times the amount of Cobalt recorded on the label of the product. Mr Waldron also had an unblemished disciplinary record unlike Mr Suli. The respondent’s submissions stated that in Mr Suli’s case, the Cobalt level was not recorded on the label of the product “although (they) accepted that Winning Edge Platinum must have, to the applicant’s knowledge, contained Cobalt”. There was no suggestion that the Cobalt in the feed in the Mr Suli’s matter approached anything like the amount in the case of Waldron.[2]
- [17]I have considered the case of Waldron and make the initial observation that I am not bound to follow the decision of another member of the Tribunal. In any event, I find that the facts in Waldron indicate that the applicant in that matter was actively misled by mislabelling. This individual’s case does not share common features with Mr Suli’s case, and I find it of little assistance in coming to my decision.
- [18]Mr Suli also referred in his Tribunal hearing submissions to the decision of Racing Victoria v Mitchell Freedman[3] (‘Freedman’). I considered this case along with the more relevant cases from Queensland. Cases from other states may be helpful but are not binding on the Tribunal and, where relevant, they may be persuasive only. I accept the respondent’s submissions regarding the differences between Mr Suli’s matter and Freedman, i.e. that case was inconsistent with the overwhelming majority of decisions from Queensland, it was a case concerning the administration of a prohibited substance which is very different to the charge of the presentation of an animal to race with a prohibited substance. The charge which was equivalent to Mr Suli’s charge was not pursued in that case. I found Freedman, like Waldron, to be of limited assistance to me in coming to the decision that I was required to make in this review.
- [19]The respondent also referred to a number of cases or decisions filed by them. It was their submission that these decisions made it clear that, with limited exceptions, penalties in the range that were imposed on the applicant were consistent and appropriate.[4] The respondent also referred to decision from regional NSW in which periods of suspension to 18 to 16 weeks were imposed[5] stating they were outliers in that context.
- [20]Mr Suli said he had contacted the Greyhound Racing Authority (‘GRA’) and they had given him a list of foods. He said that Winning Edge Platinum and Winning Edge were both on the list. He chose the Platinum product as it did not mention Cobalt on the packet when the other Winning Ede product did refer to its Cobalt levels. Under cross-examination, Mr Suli agreed that he had not asked the GRA about the Cobalt levels in each of the products on their list. Further, he had not undertaken any other testing e.g. he had not spoken to a veterinarian or had them or anyone else carry out testing.
- [21]The respondent submitted that Mr Suli made the admission that Cobalt was in everything. Further, they submitted that Mr Suli relied upon the fact that the amount of Cobalt that was in the dog food was not written on the package. The submissions indicated this was inconsistent with Mr Suli’s own admission, during the internal review stage, he was asked if he had satisfied himself of the active ingredients of Winning Edge Platinum label by studying the label and his response was “I just I [sic] didn’t look at the ingredients, I just grabbed the pack of dry food”.
- [22]It was Mr Suli’s evidence that his dogs had presented with Cobalt in their systems due to a feed that he had been giving them i.e. Winning Edge Platinum. He had 22 greyhounds in training, and he fed them all the same food. Evidence before the Tribunal indicated that none of his other dogs who were tested returned results that their Cobalt levels were above the prescribed threshold.
- [23]Mr Suli failed to explain to the Tribunal why he considered that it was definitely the Winning Edge Platinum dog food that caused the two dogs that were the subject of the charges to return elevated Cobalt levels. His evidence was that he had changed over to this brand of dog food in early September of 2021. Mr Suli did not address the proposition that it was less likely that Winning Edge Platinum was the cause of elevated Cobalt levels when only two of the 22 dogs he had in training were being impacted. He agreed that other dogs under his care, who were fed the same food and were tested, did not return urine tests for Cobalt above the prescribed level. He neither gave nor called evidence in relation to Lines and Rockstar Lincoln being in any way different to his other dogs. He did not adduce evidence indicating why they would have elevated Cobalt levels from the food when the others did not.
- [24]In paragraph 29 of the submissions filed by Mr Suli on 9 January 2024 it was submitted that in the absence of any notification from the respondent to trainers, warning of the risks of certain brands of kibble containing Cobalt, he could not be expected to undertake any further steps or tests to determine if the food he was feeding his dogs may cause elevated Cobalt levels. He submitted it was impractical to have each and every bag of kibble purchased by him scientifically tested. He stated that it is difficult to understand what more he could have done. He also questioned why he would have gone to the trouble and expense of further investigation of Cobalt levels in dog food if there was nothing to indicate to him that there might be risks associated with feeding the product to his greyhounds.
- [25]At its highest, Mr Suli’s evidence was that he received from the GRA a list of greyhound feeds and the name of Winning Edge Platinum was on this list. He did not present any evidence that he was advised by anyone, including that authority or the manufacturer of Winning Edge Platinum, that this food had no Cobalt in it or if it did have Cobalt, what amount was present. Mr Suli said he thought that the Platinum Winning Edge product would have no Cobalt in it as it did not mention it on the packet.
- [26]Under cross-examination, Mr Suli answered multiple times that Cobalt was “in everything” including the water supply in Rockhampton where he operated his business. This proposition is difficult to reconcile with his evidence that because it was not specifically mentioned on the Platinum packet that there was no Cobalt in that product.
- [27]His evidence was that the amount of food fed to one of his dogs varied depending upon its size. Small dogs got between 200 to 400 grams, however a dog such as Lines would be given a larger amount, approximately 600 to 800 grams per day. Lincoln Rockstar was a larger dog then Lines, but it was fed approximately the same amount because Lines was described as an “excitable dog” and therefore more likely to require a higher amount of food per day than other dogs of the same size.
- [28]Mr Suli commented several times that Cobalt was in everything and that he understood that it was prohibited. It was his view that it was very difficult to prevent elevated levels as Cobalt was in every substance.
- [29]Mr Suli agreed that he knew there was a threshold for the presence of Cobalt in dogs presented for racing. He agreed that therefore he would need to make sure he was feeding substances to his dogs that would not increase the amount of Cobalt in a dog’s system above that threshold. Mr Suli’s evidence was that the product called Winning Edge had on the side of the packet the amount of Cobalt in the product. His evidence was that he changed to Winning Edge Platinum as there was no mention of Cobalt on the packet. This was at odds with Mr Suli’s admissions that were made at the internal review phase, recorded on page 4 of the internal review decision filed as evidence for the Tribunal’s consideration, that he failed to satisfy himself of the active ingredients. “I just grab [sic] a bag of dry good that was registered”. His evidence was that it was silent on Cobalt and therefore, he thought it did not contain Cobalt.
- [30]Mr Suli agreed under cross-examination that he had not made any other inquiries other than relying upon what he said was advice from the GRA that this was one of the dog foods on the organisation’s list that was suitable, he did not have any tests done and did not make other inquiries. He agreed that the packet did not say there was no Cobalt in the product. Mr Suli maintained that he thought it was safe to use. He said that he had spoken to two other trainers, but not named these trainers, about the product. He said there was a dosage on the bags of food. He was asked if he followed the dog food packet’s regime for those feeding the dogs by weight. Mr Suli said the instructions of the packet was just a recommendation and that he followed his own regime for determining the amount of food per day for his dogs.
- [31]Mr Suli submitted that maintaining the current penalty or indeed the imposition of any penalty at all would cause hardship to him financially. He also referred to his wife’s and his 25-year shared interest in greyhound racing, and stated that the interests of other members of his family would be affected if the penalty was allowed to remain in place. Mr Suli did not produce any other evidence, either in written or oral form, to support these submissions. However, even if these were accepted at face value by the Tribunal, the Tribunal needs to balance Mr Suli’s and the respondent’s submissions.
- [32]There have been no contraventions by the applicant since these incidents in 2021. The prize money earned by the applicant’s greyhounds in each race has been repaid to Racing Queensland, so the applicant has not benefited financially from the positive swabs.
- [33]In Australia, the presentation of greyhounds or other animals with elevated levels of Cobalt is taken to be a very serious matter. Mr Suli did not address the serious nature of the charges that he was found guilty of. Mr Suli has three (3) prior findings of guilt and penalties applied. These prior findings of guilt and the penalties applied distinguish his situation from those licensees who had entered pleas of guilty and did not have a history of prior offences or had less of them. By his own evidence, Mr Suli clearly indicated that he was not particularly careful about what and how he fed his animals. He gave evidence of making what could be described as very large assumptions about whether there was Cobalt or not in the food solely based on the label of the bag the feed was in. He considered it to be unreasonable to make further inquiries however one step he did make was looking at the packet. This evidence was equivocal because at the internal review stage of proceedings he said he just grabbed the packet. He also referred to two other trainers he spoke to; however, there is no evidence before the Tribunal to support this nor did he provide their names or the dates or times of these interactions or any information received when he spoke to them. Therefore, this submission was very hard to accept and I found that it was not a submission that I should give considerable weight to in coming to my decision about penalty.
Evidence of Dr Major and Professor Mills
- [34]As per the Tribunal’s directions both Dr Major and Professor Mills gave evidence concurrently.
- [35]Dr Major’s evidence was restricted to the greyhound Lines.
- [36]The majority of the report from Dr Major dealt with issues other than those of penalty and therefore were not relevant to these proceedings. Similarly, some of Professor Mills’ evidence was focused on addressing the points raised by Dr Major in his report and therefore it also covered areas that were not relevant to the issue of penalty. Dr Major’s evidence and written report were focused on the issue of Cobalt being detectable in a greyhound system and how to best detect it. He disagreed with some of the reports and studies that Professor Mills referred to. This evidence went to the substantiation of the charges. It did not go to the issue of penalty that was before the Tribunal.
- [37]Dr Major’s evidence was essentially that Cobalt levels could test differently in batches of food. Evidence was given in relation to the Cobalt levels of a batch of Winning Edge Platinum that had been forwarded to a laboratory for testing. Dr Major organised the testing on behalf of Mr Suli. It was Mr Suli’s evidence that he changed the brand of kibble used to feed to his greyhounds approximately a month before the first positive swab on the 6 October 2021. He said his reason for this was that he was unable to source the product he had been using up until that point. It was his evidence that after the first positive swab he had consulted with Dr Major and made arrangement for the testing of kibble.
- [38]Mr Suli engaged Dr Major after the positive urine sample returned by the dog Lines but before the positive sample of Rockstar Lincoln.
- [39]Dr Major’s evidence focused mainly on substantiation of the charges and not penalty. It applied to only one of the two greyhounds that were the focus of this appeal and this meant that Dr Major’s evidence was of limited use to the Tribunal. His evidence did focus on some issues that were relevant to the question at hand i.e. penalty.
- [40]Dr Major addressed conclusion four (4) in Professor Mills’ report. During the concurrent giving of evidence there was a lengthy interchange between Professor Mills and Dr Major in relation to a study conducted by Professor Ben Hibbard. This exchange did not advance the Tribunal’s task of deciding the issue of penalty.
Queensland Racing Integrity Commission Submissions
- [41]The respondent’s submissions of 17 January 2024 included a review of penalties related to the presence of the prohibited substance Cobalt in greyhounds presented for racing. The respondent relied on evidence from the field material and the evidence of Professor Mills and Aleisha Turner (written), emphasizing that the review was solely for penalty purposes. Mr Suli argues for no penalty; however it was the respondent’s submission that that comparable cases, already referred to in these reasons, typically result in disqualifications and suspensions.
- [42]The submissions stated that the initial plea of not guilty and the three prior offenses were relevant factors for the Tribunal to consider. Other relevant factors were Professor Mills’ report and his evidence that referenced expert veterinary opinions on the seriousness of Cobalt, noting its impact on the blood system of animals. This information went to the serious nature of the offending and the need for the penalty to reflect this.
- [43]The Respondent cited the decision of Queensland Racing Integrity Commission v Scott [2019] QCATA 121 (‘Scott’) as having similar facts and outcomes to the current case, and it was submitted that as a QCAT Appeals Tribunal decision it was more persuasive upon the current Tribunal than the cases referred to by the applicant. It was submitted that Scott also provided a precedent for the appropriate penalties in Mr Suli’s case.
- [44]The submission referred to the Waldron decision, where no penalty was applied, highlighting its uniqueness and limited relevance due to differing circumstances. The decision in Freedman was also noted for its differences, including it being a Victorian decision and involving a different charge.
- [45]The respondent submitted that the applicant was careless in providing feed, with similarities to the Scott case. Also highlighted was the respondent’s view of the seriousness of Cobalt offenses and the cited decisions.[6]
- [46]Cobalt offences are considered particularly serious. In Hooper v QRIC [2017] QCAT 236, Member Olding noted, at [95], citing the decision in QRJC v Gilroy [2016] QCATA 146 (‘Gilroy’):
Thomas J noted that ‘A key consideration is to maintain the integrity of the industry as a whole and to demonstrate to participants in the industry and the public, that behaviour which breaches the rules will not be tolerated.’ This is consistent with the objects of the Act, which include to maintain public confidence in racing, ensure the integrity of all persons involved with racing, and safeguard the welfare of animals involving in racing.
Specifically in relation to Cobalt, the Appeals Tribunal in Gilroy also endorsed comments in David Crawford v Stewards of Greyhound Racing Victoria, in relation to general deterrence that:
a message needs to be sent to the trainers that the Cobalt threshold must not be breached as it is not satisfactory that performance enhancing substances are used especially those which may impact on the welfare of greyhounds.
There is no apparent reason why the same considerations should not apply in respect of Cobalt usage by trainers in the harness racing industry.
- [47]Deterrence is an important feature. In Queensland Police Service v Compton (No 2) [2011] QCATA 246, the Appeal Tribunal said this at [25]:
… balanced against these factors were, as the learned Member also recognised, the requirements of deterrence, the purpose of disciplinary proceedings, the protection of the public, the maintenance of proper standards and the necessity for community confidence in the police service. Any sanction had to reflect appropriate disapproval.
The personal factors of a case are to be considered as relevant, but do not prevail over the protective disciplinary requirements:
Focusing solely upon the personal and mitigating factors necessarily involves an impermissible inversion that excludes the disciplinary process and the role of this Tribunal.
- [48]Similar sentiment was expressed by McGill DCJ in Wallace v Queensland Racing [2007] QDC 168 at [63]
the evident purpose of rule AR 178 …is to provide very strong incentives for trainings and others who are responsible for the wellbeing of a horse to take great care to ensure that the horse when presented for racing will be unaffected by prohibited substances.
- [49]As is notable from all of these decisions, it matters not whether the animal is a horse (thoroughbred or otherwise) or a greyhound – the welfare of the animal is equally susceptible in either case, and the principles relevant to racing in all forms are the same.
Penalty
- [50]The applicant submitted that the result of his appeal to the Tribunal should be the imposition of no penalty, in lieu of the twelve-month suspensions (with six months suspended for one year) imposed following internal review by the respondent. The respondent’s submission was that it would be entirely contrary to known comparable penalty determinations if no penalty were to be imposed here. They further submitted that the appealed penalty was appropriate and that there is no justification for departing from that well-established line of precedence in Mr Suli’s case.
- [51]The respondent submitted Mr Suli’s case differed from the situation where a licensee, despite the taking of reasonable precautionary steps, had inadvertently administered a substance containing Cobalt, or a permitted substance to the wrong animal – what occurred was entirely avoidable, and no explanation has been offered as to why steps to ensure it did not occur were not in place. If a person wishes to administer substances that are, beyond a certain threshold, banned, he or she must accept responsibility for failing to take necessary steps to ensure strict compliance with the rules is maintained. This is not a case which is capable of being categorised as being at the lower end of the scale of innocence – Mr Suli’s ignorance of the true situation only means he does not suffer under heavier punishment for deliberate conduct and says nothing about the fact that that ignorance was of his own making.[7]
- [52]The respondent was of the view that the Tribunal should accept that the issue is a serious one.
- [53]Mr Suli submitted that his disciplinary history was of little relevance to the current proceedings. I could not accept this submission as Mr Suli has three prior offences for breach of these same rule, that is, rule 83(2)(a). I accept the respondent’s submissions that these are of material relevance and is something that distinguishes the facts of Mr Suli’s case from that of many other comparable decisions where people had no prior breaches of the rule they had been charged with and found guilty of.
- [54]Mr Suli did not plead guilty at the first instance, and this is also a factor that I must consider. It is certainly an issue that distinguishes Mr Suli’s case from many of those that he seeks to rely upon, where the licensees involved in those matters entered pleas of guilty at the first opportunity.
- [55]QRIC imposed two (2) 12-month suspensions with six (6) months wholly suspended for 12 months, to be served concurrently. Therefore, if there were no further breaches, and Mr Suli’s submissions indicate this is the case, this would mean that in effect Mr Suli’s overall penalty would be a six (6) month disqualification period. This due to six (6) months of the penalty being suspended for a period of 12 months. This appears to be well within the reasonable range for penalties of matters of this nature.
- [56]Scott could be considered to be similar to Mr Suli’s case, although, unlike Mr Suli, Ms Scott pleaded guilty to the charge at the first available opportunity. Further, she could not explain how the substance came to be in the greyhound’s system and this contrasted with Mr Suli’s view that the feed he used, Winning Edge Platinum, was to blame for Mr Suli’s two greyhounds returning urine samples with elevated levels of Cobalt.
- [57]The applicant’s submission was that the imposition of any penalty will cause him financial hardship. I accept that a suspension may have an impact on the financial situation of Mr Suli. After considering the legislation and its purpose and the decision of Gilroy, I find that the central issue is the maintenance of the public’s confidence in racing, in this case, greyhound racing. I also must consider that the public bets money on the outcome of these races and if these races were not to be run with integrity and without the use of prohibited substances in animals, the public would very quickly lose confidence in the industry. It follows then, any person betting would be at an unfair disadvantage if they were not aware of which greyhounds in a race had Cobalt levels above the prescribed threshold in their bodies and which ones did not.[9] Allowing a person who has entered a plea of guilty to present a greyhound with a Cobalt level above the mandated threshold to be given a lighter penalty than someone else who committed the same breach but may not be in better financial circumstances cannot be an appropriate outcome.
- [58]I find that the QRIC’s submissions are correct, and I also find that however long a matter takes to be finalised in the Tribunal is not something that directly goes to the purpose served in imposing a penalty with respect to relevant factors. These factors were identified by the QCAT Appeals Tribunal in Gilroy:
[17] The main purposes of the Racing Integrity Act 2002 (Qld) (‘Racing Act’) are:
- To maintain public confidence in the racing of animals in Queensland for which betting is lawful;
- To ensure the integrity of all persons involved with racing or betting under the Racing Act; and
- To safeguard the welfare of all animals involved in racing under the Racing Act.[10]
- [59]I accept QRIC’s submissions on the gravity of the rule breaches committed here. The precedents for such a breach in the greyhound industry establish a lengthy period of suspension and or a fine is the appropriate penalty. Mr Suli did not address the issue of the gravity of the breaches.
- [60]I agree and follow the decision of McGill DCJ in Wallace v Queensland Racing[11] in relation to the categories of culpability and I find on the basis of the evidence and submissions before the Tribunal that Mr Suli is to be placed in the category of culpability where he could be described as, at best, careless with his feeding regime. He was aware of Cobalt as a prohibited substance beyond a prescribed threshold, indeed he had three (3) prior breaches of the same rule that is the subject of these reasons, and his behaviour shows that he did not take care to ensure his animals were not presented with Cobalt levels above the prescribed threshold.
- [61]Mr Suli took no further steps than asking the industry association what dog foods were on their list and he says he spoke to two unidentified trainers but did not specify who they were or what was discussed. The act of looking at a packet and surmising that it its contents contained no Cobalt on the basis of the label not explicitly saying it had Cobalt in it was insufficient to discharge his responsibilities as a licensee.
- [62]At the internal review stage, the applicant admitted that he was aware that Winning Edge Platinum kibble had several vitamins on the label including vitamin B12. Mr Suli admitted that he failed to satisfy himself of the active ingredients on the Winning Edge Platinum label. He took no active responsibility for the feeding regime of his dogs and as such he must accept the culpability which comes with his failure to take his responsibility as seriously as it needed to be taken. I agree with the respondent’s submission that this is not a case which is capable of being categorised as being at the lower end of the scale of ignorance. The best that can be said for Mr Suli’s case is that he is not deserving of a heavier punishment for deliberate conduct; however, the situation was caused by him. Whether his breach of the rule can be explained as carelessness or ignorance, the outcome is the same.
Decision
- [63]I have come to the conclusion that the decision of the Queensland Racing Integrity Commission, to impose two (2) concurrent 12-month suspensions, with six (6) months wholly suspended for 12 months provided a similar breach is not committed, is the appropriate penalty. I considered the following points:
- the seriousness of the breach;
- the relevance of such a breach to upholding the purposes of the relevant legislation; and
- the placement on the scale of culpability of Mr Suli’s actions.
- [64]I find that anything less than the sentence imposed would be manifestly inadequate. These penalties are not unreasonable and indeed the full penalty of a 12-month suspension is well within the range for this type of offence. I note that a disqualification may also be considered appropriate rather than the lesser penalty of a suspension as applied to Mr Suli.
Orders
- The application for review is dismissed.
- The decision of the Queensland Racing Integrity Commission dated 21 April 2021 to impose two (2) 12-month disqualifications, with six (6) months wholly suspended for 12 months, to be served concurrently, is confirmed.
Footnotes
[1] The Greyhounds Australasia Rules were updated on 1 May 2022, the relevant rule is now 141(1)(a).
[2] Respondent’s submissions filed 17 January 2024, paragraph 9.
[3] The only reference given of this was a decision dated 22 December 2021.
[4] Maynard (17 March 2022 – Qld), Dacey (24 September 2021 – Qld), Ward (23 September 2021 – Vic), Cassidy (31 August 2021 – Qld), Thompson (12 August 2021 – Qld), Donaldson (17 August 2020) and Clegg (23 June 2020); all were decisions to impose 12 months suspensions (typically with an 8-month period of suspension for 12 months) generally off the back of pleas of guilty (as opposed to the not guilty plea here).
[5] Apps (3 March 2022), Finn (24 February 2022), Cecil (27 August 2021), Roberts (17 March 2021) and Moore (16 February 2021).
[6] Respondent’s submissions filed 17 January 2024, paragraph 15-17.
[7] Respondent’s submission filed 17 January 2024, paragraph 13.
[9] Nicholls v Queensland Racing Integrity Commission [2023] QCAT.
[10] Racing Act 2002 (Qld), s 4, as cited in QRIC v Gilroy [2016] QCATA, paragraph 17.
[11] [2007] QDC 168 at [69].