VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z264/2021
	
CATCHWORDS	
Racing Act 1958 ss 83OH(1), cl 66N of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 - Victorian Racing Tribunal finds charges proven concerning failure to provide kennels, failure to exercise reasonable care and supervision to prevent a greyhound under care or custody from being subjected to unnecessary pain or suffering, failure to provide appropriate veterinary care and inappropriate email/Facebook post regarding stewards – VRT penalty disqualifies applicant for three years with $200 fine - application for review to VCAT concerning penalty decision	

APPLICANT	Colin O’Donnell	
RESPONDENT	Greyhound Racing Victoria	
WHERE HELD	Melbourne	
BEFORE	I. Proctor, Deputy President	
HEARING TYPE	On the papers	
DATE OF HEARING	14 April 2023	
Date of Order & Reasons	30 May 2023	
DATE OF CORRECTION ORDER	15 June 2023	
CITATION	O’Donnell v Greyhound Racing Victoria (Review and Regulation) (Corrected) [2023] VCAT 609	

Order

The decision of the Victorian Racing Tribunal is affirmed.

Ian Proctor
Deputy President			

Reasons
1	In 2021, Greyhound Racing Victoria Stewards brought four Charges against Mr Colin O’Donnell under the Racing Act 1958 (the Act) concerning events in 2019. Mr O’Donnell plead not guilty to the charges.
2	On 18 February 2021, the Victorian Racing Tribunal (VRT) found the charges proven, disqualified Mr O’Donnell from holding registration as a trainer with Greyhound Racing Victoria (GRV) and fined him $200.
3	Mr O’Donnell applied to VCAT for review by VCAT of the penalty decision. He submitted the penalty should be ‘zero or substantially reduced’ penalty. GRV submitted that VRT’s penalty decision should be affirmed.
4	At the parties’ request, this case was decided on the basis of their written submissions and documents provided, without VCAT holding a hearing.
5	VCAT’s jurisdiction in relation to decisions of the VRT is limited to reviewing penalty decisions. Section 83OH(1) of the Act says:
Review by VCAT of decisions of Racing Appeals and Disciplinary Boards 
… 
(1)	A person whose interests are affected by a decision made by the Victorian Racing Tribunal may apply to VCAT for review of that decision in relation to a penalty imposed on the person by the Victorian Racing Tribunal. 
(2)	A Steward may apply to VCAT for review of a decision made by the Victorian Racing Tribunal in relation to a penalty imposed by the Victorian Racing Tribunal.
Note: 
See clause 66N of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.
6	Clause 66N says: 
66N Tribunal bound by findings of fact made by Victorian Racing Tribunal 
Despite section 51, in determining a proceeding for review of a decision of the Victorian Racing Tribunal under section 83OH of the Racing Act 1958 in relation to a penalty imposed by the Victorian Racing Tribunal, the Tribunal is bound by the findings of fact that were made by the Victorian Racing Tribunal.
7	In Laming v Racing Victoria Ltd [2022] VSC 813, Cavanough J said [from 33] that VCAT’s racing jurisdiction is now strictly limited and confined to the hearing of applications for the review of decisions on penalty that have been made by the VRT, a ‘highly qualified, independent, powerful, expert tribunal’.
8	VCAT is bound by the VRT’s findings of fact. Cavanough J said in part:
… the VRT is to have an exclusive role, and the final say, not only in relation to identifying those alleged facts of which it is or is not comfortably satisfied, but also in relation to the question whether any alleged fact or set of facts is worth investigating or considering at all. In my view, subject to any issue of legal unreasonableness or the like, it may be open to the VRT in a particular case to determine that an allegation, or set of allegations, made by either RVL or the accused person is not sufficiently relevant or significant to warrant investigation or consideration. …
9	He went on to say VCAT has no power to embark on its own fact-finding exercise at least in relation to matters already covered by the findings of fact made by the VRT:
If VCAT fails to recognise that it must keep away from the area covered by the findings of fact already made by the VRT, and if VCAT proceeds to embark on an examination of the evidentiary material underlying the factual findings made by the VRT, or if, for that matter, VCAT purports to admit in evidence and examine fresh material going to the matters on which the VRT has already made findings of fact, then VCAT plainly errs in law.  
10	He approved VCAT’s approach in Bellman v Harness Racing Victoria [2022] VCAT 249, that the role of VCAT is to make the correct or preferable decision on penalty based on the findings of the VRT. In Bellman, the VRT’s decision in full was set out, before moving to discuss the penalty decision under review.
11	Returning to this case, Mr O’Donnell had earlier applied to VCAT seeking orders that VCAT remit the decision under review back to the VRT for it to reconsider its decisions as to findings and penalties. 
12	In O'Donnell v Greyhound Racing Victoria (Review and Regulation) [2022] VCAT 571, VCAT ruled that VCAT:
a)	Does not have power to remit the decision under review back to the VRT under s 51(2)(d) and/or s 51A(1) of the VCAT Act, such that the VRT is then able to re-hear the matter it determined in its decision of 18 February 2021, and make a fresh determination, on both liability and penalty; and
b)	While VCAT has power to remit the decision under review is to penalty back to the VRT for reconsideration, it was not appropriate to do so.
VRT’s decision
13	Adopting the Bellman approach, the VRT’s written decision, in full, follows:
Charges: 	Greyhounds Australasia Rule (“GAR”) 106(1)(c) states:
(1) A registered person must ensure that greyhounds, which are in the person’s care or custody, are provided at all times with –
(c) Kennels constructed and of a standard approved by the Controlling Body which are adequate in size and which are kept in a clean and sanitary condition.
GAR 106(1)(d) states:
(1) A registered person must ensure that greyhounds, which are in the person’s care or custody, are provided at all times with –
(d) Veterinary attention when necessary.
GAR 106(2) states:
A registered person must exercise such reasonable care and supervision as may be necessary to prevent greyhounds pursuant to the person’s care or custody from being subjected to unnecessary pain or suffering.
GAR 86(f) states:
A person (including an official) shall be guilty of an offence if the person:
(f) engages in, publishes or causes to be published, broadcasts or causes to be broadcast, the use of any contemptuous, unseemly, improper, insulting, or offensive language, conduct or behaviour in any manner or form towards, or in relation to-
(i) 	a Steward;
(ii) 	the committee, or a member of the committee, of a club;
(iii) 	the Controlling Body, or a member of the Controlling Body; or
(iv) 	any other person having
Particulars of Charges: Charge 1
You, being a trainer registered with Greyhound Racing Victoria (GRV), failed to provide, at all times, kennels constructed and of a standard approved by GRV which are adequate in size and which are kept in a clean and sanitary condition, in that:
1. 	You were, at all relevant times, a trainer registered with Greyhound Racing Victoria (Member No. 45778) and a person bound by the Greyhound Australasia Rules and Local Rules of Racing.
2. 	You did, at all relevant times, have the care or custody of the following greyhounds:
a. 	Unnamed black and white greyhound (Ear brand: VPR 9703);
b. 	Tandar Lass (Ear brand: VBJ 6529);
c. 	Goddess of Greys (Ear brand: NFDAL); and
d. 	Snakes Alive (Ear brand: NFECW) (the Greyhounds).
3.	On 10 September 2019, Investigative Stewards Mr Kirk Branton and Ms Lianne Salerno attended your kennel address, … (the Property), and observed that there were no kennels on the Property.
Charge 2
You, being a trainer registered with Greyhound Racing Victoria, failed to provide veterinary attention when necessary to a greyhound that was in your care or custody, in that:
1. 	You were, at all relevant times, a trainer registered with Greyhound Racing Victoria (Member No. 45778) and a person bound by the Greyhound Australasia Rules and Local Rules of Racing.
2. 	You did, at all relevant times, have the care or custody of an unnamed black and white greyhound with the ear brand VPR 9703 (the Greyhound).
3. 	On 10 September 2019, Investigative Stewards Mr Kirk Branton and Ms Lianne Salerno attended your kennel address, … (the Property) and observed that the Greyhound was in pain and had poor movement.
4. 	On 12 September 2019, Dr Matthew Blakely of the Port Phillip Animal Hospital diagnosed the Greyhound with osteosarcoma (malignant bone cancer), and observed:
a. 	A loss of musculature from the left hind hip down to the foot;
b. 	A large swelling above the left tarsus extending into the rest of the foot;
c. 	Almost complete destruction of the tibia and fibia near the tarsal joint, as well as multiple pathological fractures up both bones; and
d. 	At least two metastases in the lungs.
5. 	Between on or about 12 May 2019, being the approximate date that the Greyhound commenced suffering severe pain from osteosarcoma, and 12 September 2019, being the date that the Greyhound received veterinary attention, you failed to provide veterinary attention to the Greyhound when such veterinary attention was necessary.
Charge 3
You, being a person registered with Greyhound Racing Victoria, failed to exercise such reasonable care and supervision as was necessary to prevent a greyhound pursuant to your care or custody from being subjected to unnecessary pain or suffering, in that:
1. 	You were, at all relevant times, a trainer registered with Greyhound Racing Victoria (Member No. 45778) and a person bound by the Greyhound Australasia Rules and Local Rules of Racing.
2. 	You did, at all relevant times, have the care or custody of an unnamed black and white greyhound with the ear brand VPR 9703 (the Greyhound).
3. 	On 10 September 2019, Investigative Stewards Mr Kirk Branton and Ms Lianne Salerno attended your kennel address, … (the Property) and observed that the Greyhound was in pain and had poor movement.
4. 	On 12 September 2019, Dr Matthew Blakely of the Port Phillip Animal Hospital diagnosed the Greyhound with osteosarcoma (malignant bone cancer), and observed:
a. 	A loss of musculature from the left hind hip down to the foot;
b. 	A large swelling above the left tarsus extending into the rest of the foot;
c. 	Almost complete destruction of the tibia and fibia near the tarsal joint, as well as multiple pathological fractures up both bones;
d. 	At least two metastases in the lungs.
5. 	Between on or about 12 May 2019, being the approximate date that the Greyhound commenced suffering severe pain from osteosarcoma, and 12 September 2019, being the date that the Greyhound received veterinary attention, you failed to provide veterinary attention to the Greyhound when such veterinary attention was necessary.
6. 	As a result of your failure to provide veterinary attention to the Greyhound between on or about 12 May 2019 and 12 September 2019, the Greyhound was subjected to unnecessary pain or suffering.
Charge 4
You, being a trainer registered with Greyhound Racing Victoria, did engage in the use of contemptuous, insulting or offensive language towards, or in relation to, the Controlling Body, the Stewards and other persons having official duties in relation to greyhound racing, in that:
1. 	You were, at all relevant times, a trainer registered with Greyhound Racing Victoria (Member No. 45778) and a person bound by the Greyhound Australasia Rules and Local Rules of Racing.
2. 	You engaged in the use of contemptuous, insulting or offensive language towards, or in relation to, the Controlling Body, the Stewards and other GRV staff in written statements published via email and Facebook, as detailed in paragraph 3.
3. 	The written statements were as follows:
a. 	On 9 September 2019, you sent an email from your account   … to the GRV Integrity Council (integritycouncil@grv.org.au), in which you stated: “ALL GRV FAULT, PLENTY OF MONEY TOWASTE ON CORRUPT STAFF DOIN CORRUPT JOBS”;
b. 	On 4 October 2019, you published a post on your public Facebook page, in which you stated: “So the liars @ GRV, Who I called out, to remove 3 dogs put my dog down. They r now investigating me, wat a bunch of Crooks”.
Pleas: Not guilty to all charges
DECISION
Mr Colin O’Donnell has pleaded “not guilty” to four charges brought against him by Greyhound Racing Victoria (“GRV”).
Those charges are as follows:
Charge 1: failure to provide kennels constructed in an approved standard, breaching Greyhounds Australasia Rule (“GAR”) 106(1)(c).
Charge 2: failing to provide veterinary attention when necessary, breaching GAR 106(1)(d).
Charge 3: failing to exercise reasonable care and supervision necessary to prevent unnecessary pain or suffering, breaching of GAR 106(2).
Charge 4: engaging in, or publishing contemptuous, insulting or offensive language in relation to the controlling body, breaching of GAR 86(f).
The facts alleged against Mr O’Donnell, which give rise to charge 1 is as follows:
Mr O’Donnell is registered with GRV as a public trainer and breeder and his registered address is located in Lexton, Victoria. On 9 September 2019, GRV received an email from Mr O’Donnell requesting that GRV staff attend his property within three days of the email to remove greyhounds from his property as he could no longer afford to feed them.
On Tuesday, 10 September 2019, Investigative Stewards attended the registered address of Mr O’Donnell and identified him and four greyhounds at the property. Three greyhounds, “Tandar Lass”, “Goddess of Greys” and “Snakes Alive” were located in the rear yard of Mr O’Donnell’s property, roaming free with no muzzles and were easily accessed via a gate. No kennels or obvious bedding was seen at that time. The fourth greyhound, known as “Pie” (VPR9703), was located inside the house and appeared to have a large swelling to its left hind leg. The greyhound appeared to be in pain and had poor movement. Mr O’Donnell said, that he was aware that Pie had cancer. He also stated that he had sought veterinary treatment, but the veterinarian provided very limited options including either removal of the left rear leg or euthanasia. After some discussion, Mr O’Donnell agreed to surrender the greyhounds to the Greyhound Adoption Program (“GAP”).
On Thursday, 12 September 2019, the Stewards, accompanied by GAP staff, returned to Mr O’Donnell’s place of residence to facilitate the surrender of the greyhounds to GAP. An inspection beforehand of the four greyhounds was conducted by the Stewards and GAP staff. On that day, Mr O’Donnell signed GAP surrender forms and surrendered all four greyhounds on his property to GAP. He was made aware that the greyhounds would be seen by a veterinarian and he would be advised as to the outcome or the greyhounds. It is a matter of contention, and certainly a matter that has irritated Mr O’Donnell, that he was not kept in the loop about what happened, particularly in relation to the greyhound, Pie, to whom he had a strong emotional attachment. The Tribunal does not see why it was that it was not communicated to him sooner. There are protocols GRV must observe, but even so, it would have been clear that Mr O’Donnell’s greyhound was 11.5 years old and one could understand his frustration about that.
Nevertheless, a veterinary examination of Pie was conducted the same day that it was taken to the Port Phillip Animal Hospital. It was found that the greyhound was suffering from:
•	Loss of musculature from the left hind hip all the way down to the foot;
•	Large swelling just above the tarsus;
•	Complete destruction of the left hind tibia and fibula, including multiple pathological
•	fractures;
•	Osteosarcoma (a form of cancer) in the left hind leg; and
•	At least two metastases in the lungs.
It is a matter of speculation whether the fractures happened on the way down to Melbourne.
The evidence given by Dr Gavin Gobel, the GRV General Manager – Greyhound Welfare and Rehoming, was that this was possible, but unlikely. GRV submitted that their veterinary advice was that Pie would have suffered gravely and been in extreme pain for some time. Again, Dr Gobel clarified that today. He did not see or examine the greyhound, but said that it would have been in significant pain, certainly from the time it was examined by veterinarian, Dr Michael Bell, on 29 July 2019 until 12 September 2019.
Further to that, on 4 October 2019, Mr O’Donnell created a Facebook post using his account, which stated: “So the liars @ GRV, Who I called out, to remove 3 dogs put my dog down. [Mr O’Donnell knew at this stage that they greyhound had been euthanised]. They r now investigating me, wat a bunch of Crooks”. GRV has taken exception to that and this forms part of the basis of charge 4.
Subsequently, a Stewards inquiry was held on 25 October 2019. Today, Mr O’Donnell indicated that he was not quite ready for that and indicated during the Tribunal hearing that, in terms of preparation, he was perhaps not ready for that inquiry. During that inquiry, Mr O’Donnell:
1) 	Confirmed his email address and ‘Facebook’ account name;
2) 	Was shown the email sent to GRV on Monday 9 September 2019 and admitted that he had sent it;
3) 	Admitted that he signed and surrendered four greyhounds to the GAP on 12 September 2019;
4) 	Stated that he had no kennels for the greyhounds on his property;
5) 	Admitted that he was unable to afford to construct kennels, continue to pay for food for his greyhounds and struggled to look after the greyhounds;
6) 	Stated that he is in serious financial difficulties and suffering with mental health conditions, which at the time he did not realise, as per his evidence today;
7) 	Admitted to sourcing online and administering non-prescribed ‘CBD’ oil (sic Cannabinol) to Pie when it whimpered at night, as he believed it to have a sedative effect; and
8) 	Stated that he was waiting for anti-inflammatory medication to treat Pie which was to arrive from a veterinary clinic but it had not arrived.
Lead Investigator and Investigative Steward, Mr Kirk Branton, and Dr Gavin Gobel both gave evidence to this Tribunal. They confirmed, amongst other matters, previous statements, attendances at the subject property, medical reports, videos, transcripts, emails and all the exhibits relied upon by GRV.
Dr Gobel did not examine Pie, but reviewed the medical report from Dr Matthew Blakely and spoke to Dr Rebecca Goode about the condition and prognosis for Pie. Dr Gobel is a veterinarian with over 30 years experience. In his opinion, Pie, a greyhound of 11.5 years, was in significant pain when it was taken and euthanised on 12 September 2019.
Mr O’Donnell had a significant emotional attachment to this dog, as he had it since it was a pup. He knew Pie was dying. He took the dog to Dr Michael Bell on 29 July 2019, when penicillin and antibiotics were prescribed. The tablets prescribed did not arrive before 12 September 2019. Mr O’Donnell followed up with a phone call, whereupon he discovered the tablets had been sent to an old address. Due to his lack of money, Mr O’Donnell did not seek further direct consultation with Dr Bell or any other veterinarian. He did, however, give Pie cannabis oil to make it more comfortable. More was needed than that.
Charges 2 and 3 are proven to the comfortable satisfaction of the Tribunal. In the period between 29 July to 12 September 2019, there should have been a direct consultation with Dr Bell or another veterinarian regarding Pie.
Charge 1 relates to a failure to provide kennels. The greyhounds had open space, fenced gates and neighbours on one side of Mr O’Donnell’s property. The dogs lived on matting at the rear of the house and it seems Mr  O’Donnell was content with this arrangement. On his evidence, the greyhounds never got loose. However, as registered greyhounds, their kennelling was subject to the Rules of greyhound racing and as such, charge 1 is proven because there were no kennels, per se, provided to house the greyhounds.
In relation to charge 4, it is also proven. In context and by way of explanation only, we are of the view that it serves more as a distress signal by Mr O’Donnell at the time when, by his own admission, he was clearly not well. He was caring for his elderly mother, had very little money, there were interfamily relationship difficulties and he could not afford to keep the greyhounds.
These are the findings of the Tribunal.
PENALTY
Mr O’Donnell is aged 59 years. He has been involved in greyhound racing since April 1982. He and friends have enjoyed the industry and the circumstances which lead him to the Tribunal represent a low ebb in his time in greyhound racing.
He does not have any greyhounds at this time. The circumstances and explanation for his offending are well covered in the reasons for the decision of the Tribunal. Lack of money, mental health issues and family pressures were key indicators about how Mr O’Donnell found himself in the care and management of the greyhounds. Certainly, mental health considerations are also relevant in assessing penalty, as well as general deterrence. Also of relevance are the testimonials supplied by Mr O’Donnell. They are from Mr Scott James, Mr Michael Bouchaud and Mr Peter M White. The Tribunal has had the benefit of considering. Mr Hannan, on behalf of the Stewards, has advised that there is no relevant history of breaches, but referred to cases decided by other Tribunals and the penalties given.
Of course, each case will depend on its own set of facts and circumstances. Certainly, here, charges 2 and 3 are the most serious.
In the event, the Tribunal will impose the following penalties:
Charge 1: a disqualification of any licence held by Mr O’Donnell for 4 months.
Charge 2: a disqualification of any licence held by Mr O’Donnell for 2 years.
Charge 3: a disqualification of any licence held by Mr O’Donnell for 3 years.
Charge 4: a fine of $200.
The penalties in charges 1-3 inclusive are concurrent with each other, rendering an effective term of 3 years disqualification, to commence immediately.
Principles on penalty
14	As said in Bellman, and repeated here, the principles applicable to s 83OH(1) penalty reviews are well understood.
15	The role of the Tribunal is to make the correct or preferable decision on penalty based on the findings of the VRT. 
16	The purpose of imposing penalties is primarily protective, to preserve the integrity of greyhound racing by imposing penalties sufficient to deter a guilty party from repeating the conduct (specific deterrence), send a message to the industry concerning the fate of those who offend against the rules (general deterrence) and to uphold the reputation of the industry with the betting public and the general public.
17	In determining an appropriate penalty it is necessary to balance and weigh up the principles of just punishment, specific and general deterrence, denunciation, the preservation of the integrity of racing and the prospects of rehabilitation of the offender. 
18	The Racing Appeals Tribunal (NSW) in Bennett v Harness Racing New South Wales considered the balancing of the protection of the integrity of the industry with favourable subjective circumstances, saying: 
It is important to emphasise that in certain cases the facts and circumstances of the objective seriousness of a matter warrant a penalty which is not reduced by, or only marginally reduced by, any favourable subjective circumstances. That is particularly so in a civil disciplinary proceeding where the Tribunal is finding appropriate penalties on the facts and circumstances with a view to the protection of the integrity of the harness racing industry and not with an aim of punishment. 
In finding the appropriate protection to the industry, the Tribunal must look to what message is to be given to this appellant in respect of the conduct in which he engaged, the message to other industry participants, the message by way of guidance to the stewards and other regulators, and the message that will be received by the betting and non-betting public generally as to the consequences that will flow to those who seek to engage in similar conduct. It is emphasised that the integrity of the industry is the key focus.
19	A failure of an offender to understand the error of his ways and demonstrate insight into his offending are relevant to the nature and purpose of disciplinary proceedings and the appropriate penalty. 
20	The weight that should be attached to the VRT’s decision on penalty depends upon the particular circumstances. It is open to the Tribunal to attach some weight to the decision of members of the VRT with specialist expertise who are ‘eminently fitted’ to determine the proper penalty.
21	The Tribunal will take into account penalties in comparable cases, mindful that consistency is important. However, each case must be decided on its own facts and circumstances.
22	The range of penalties available to VCAT is broad. Section 50ZE(1)(b) enables the making of any decision which is required in the interests of justice, including the imposition of any penalty under the Rules. Under s 50A, ‘penalty’ means a fine, suspension, disqualification or warning off.
Mr O’Donnell’s submissions (and some responses)
23	In written submissions, Mr O’Donnell described the penalties which the VRT imposed as ‘far too harsh and very unfair, based on an unfair VRT hearing that failed to properly take into account all the true facts and mitigating factors’.
24	Paragraphs 4 & 5 largely dispute various aspects of the VRT findings. As VCAT is bound by the VRT’s findings, those submissions are rejected. 
25	Paragraph 6 in part submitted the VRT did not provide Mr O’Donnell with proper opportunity to prepare to present his case or to be properly heard on penalty and in part disputed VRT findings. 
26	To the extent that it is submitted that lack of opportunity related to the VRT’s findings, again VCAT is bound by the findings. To the extent that it was submitted lack of opportunity related to penalty, VCAT’s role is to consider penalty afresh, not undertake judicial review of the process the VRT used to make its penalty decision.
27	Paragraphs 7 and to an extent 8 challenge the VRT’s jurisdiction on the basis that the VRT did not have the lawful jurisdiction to impose the penalty or any penalties in relation to retired non racing greyhounds. Again, VCAT is bound by the VRT’s findings, which must include, explicitly or implicitly, that the VRT had jurisdiction to make its findings.
28	Paragraphs 8 to 10 alleged that GRV treated Mr O’Donnell unfairly and misled the VRT on various issues, including being aware of Mr O’Donnell’s diminished state of mind due to the very recent death of his mother. These are rejected, repeating the reasons at paragraph 26 above.
29	Paragraphs 11 to 14 return to submitted lack of jurisdiction, inaccurate findings and denial of a fair hearing before the VRT. They are rejected.
30	The submissions then turned to the four allegations.
31	Concerning Allegation 1 they once again dispute the VRT’s findings of fact and are rejected. 
32	They then turn to a submission on penalty, saying:
a)	In Walker v Greyhound Racing Victoria [2017] VCAT 2138, GRV v Trickett VRT 2/10/20, GRV v Ward RADB 22/1/18. and GRV v Trim RADB 18/07/17 all those matters related to GRV registered racing greyhounds and not retired, non-racing greyhounds and so are not relevant here; and
b)	An analysis of some 15 previous penalties for offending under GAR 106(1)(d) reveal penalties ranging from $300 fines to $30,000 being penalties regarding GRV registered racing greyhounds, not pets as was the case here.
33	These submissions again fly in the face of the VRT’s findings, which bind VCAT. There is no backdoor by which the findings can be undermined. 
34	Submissions on Allegation 2 entirely attempt to dispute the VRT’s findings of fact and are rejected.
35	Submissions concerning Allegation 3 are set out in full:
For comparative purposes, some guidance is gained by the VRT decisions such as GRV v Morris (20/4/20) where a total 8-year disqualification was imposed on 2 charges pursuant to GAR 106(2) for the pain and suffering caused by not providing sufficient food and water for a period of time resulting in thin body conditions and a moderate amount of suffering.  In this case “Pie” was well fed as were the other 3 greyhounds at his property.  
In the case of GRV v Mitchell (24/087/20) the VRT imposed a 4-year disqualification where the GRV registered racing greyhound suffered unnecessary pain and suffering because of numerous injuries for at least 4-5 days before its euthanasia despite the offender realising the greyhound was lame.  In this case, the dog “Pie” was not lame at the time of the GRV visit. See Veterinary history of “Pie” attached. TAB K Page 308.
In the case of GRV v Graham (18/08/19) the RADB imposed a 5-year disqualification after a plea of guilty to a charge pursuant to GAR 106(2) in circumstances where the offender left 2 GRV registered Racing greyhounds in his car with a bucket of water and the windows slightly down. One GRV racing greyhound died after some 12 hours. He pleaded guilty and demonstrated significant remorse.  In this matter “Pie” was under veterinary care at the time and was not kept in a car but kept in the family home under close supervision and attention. 
36	Concerning Allegation 4, Mr O’Donnell submitted:
a)	That the words used in the emails and on social media were true. The comments related to his request for help with his pets, not racing greyhounds. The comments were made in his capacity as a Victorian resident and not in any capacity of a licensed person. They were made after considerable provocation by the GRV’s lack of assistance after numerous polite requests. His comments should not be regarded as a breach of the rules;
b)	The ‘comments’ were made in response to false assurances given by GRV welfare staff to Mr O’Donnell. The assurance was that Pie would not be euthanized;
c)	They related to GRV staff that pressured Mr O’Donnell to sign over ownership of Pie to GRV, where GRV vets almost immediately euthanized Pie in defiance of the assurance;
d)	The comments were also in regard to repeated phone calls by Mr O’Donnell to GRV enquiring as to the welfare of Pie and not being told the truth that his pet had been euthanized by the GRV;
e)	GRV staff failed to take into account Mr O’Donnell’s close personal attachment to Pie who was not only his pet and companion, but also the close companion of his elderly and sick mother;
f)	GRV staff failed to take into account the responsibility Mr O’Donnell had to his mother who also owned and loved Pie when they took Pie by what he regarded as deception and was in fact an act of deception;
g)	GRV took Mr O’Donnell’s pet and companion of 12 years under the false promise that the dog would be re-homed to a good home and that he would be entitled to keep in touch with the new foster owners;
h)	Mr O’Donnell was assured by GRV staff that his pet would not be injured by the long Trailer journey from Lexton to Melbourne and would definitely not be euthanized. However Pie was injured and euthanized by GRV staff without him being informed; and
therefore, Mr O’Donnell was entitled to be upset by GRV’s actions and he told the truth in the email and the social media post. Provocation by GRV staff is enough to waive the penalty entirely. 
37	General submissions, again largely protesting the VRT findings of fact and lack of jurisdiction followed. Again, these are rejected. To the extent that the submissions were that the penalties are too harsh, they were too generic to assist.
GRV’s submissions
38	GRV’s submissions, responding to Mr O’Donnell’s submissions, in part refute submissions as to the VRT’s findings of fact as well as, correctly, submitting that VCAT is bound by the VRT’s submissions.
39	Concerning Charge 1, the GRV submitted that a breach of GAR 106(1)(c) was found proven and there was nothing that assisted Mr O’Donnell to lessen the gravity of the offending on the basis that the greyhounds in his care were not active racing greyhounds. The relevant findings of fact found by VRT include that the greyhounds had open space, fenced gates and neighbours on one side of Mr O’Donnell’s property, and that the greyhounds lived in matting at the rear of the house. A carport, with at least a roof, but little protection on the sides, was at least available as shelter at the premises.
40	An analysis of four previous decisions on penalty for offending under GAR 106(1)(c) reveals penalties ranging from 6 months’ disqualification (Walker) to wholly suspended suspensions (Trickett). The matters of Trim and Ward involved properly constructed kennels that were in less than a clean and hygienic state, and so differ somewhat from the present case. 
41	Of most relevance for comparison purposes is the penalty imposed in Walker, who also pleaded not guilty to the charge. VCAT found her guilty on the basis that she had an insufficient number of kennels to house her greyhounds, with some being left out in the open and exposed to the elements. VCAT reduced the penalty to six months’ disqualification. 
42	The GRV submitted the circumstances of offending in Walker to be more serious in that there was no shelter for some 11 greyhounds who were out in the elements in wet and uncomfortable conditions. In this case Mr O’Donnell only provided the most basic provision of adequate kennelling, proving some warmth and shelter from wind and rain, with only matting at the rear of the house. 
43	The GRV submitted that specific and general deterrence loom large here, and the penalty imposed by VRT is appropriate in the circumstances.
44	Concerning Charges 2 and 3, relating to Mr O’Donnell’s failure to provide veterinary attention, and the resulting suffering of unnecessary pain to the greyhound called “Pie”, GRV submitted the VRT’s findings of fact represent a serious set of circumstances resulting in Pie suffering significant pain at least from 29 July 2019 until the greyhound was euthanised after seizure on 12 September 2019. It is clear that the greyhound was dying, but to slowly die suffering significant pain was unnecessary and a serious breach of Mr O’Donnell’s obligations. Not following up with the vet about the missing medication, not seeing another vet after 29 July 2019, or having the greyhound euthanized, means that Mr O’Donnell’s culpability is high.
45	Analysis of some 15 previous penalties for offending under GAR 106(1)(d) reveals penalties ranging from $300 fines to $30,000 fines. However, the GRV submitted the offending in each of those cases differed substantially to the offending here. This was either by reason of the culpability, the length of the delay in seeking veterinary attention, or the severity of the illness or injury. Whilst the two year disqualification imposed for this charge was stern, and somewhat unprecedented, so too was the offending.
46	An analysis of some 17 previous penalties for offending pursuant to GAR 106(2) reveals penalties ranging from 3 months’ disqualification to life disqualification. In cases where life disqualifications were imposed, it is accepted that the offending was even more extreme, and involved more greyhounds, than here. 
47	For comparative purposes, some guidance is gained by the VRT decisions such as Morris where a total 8-year disqualification was imposed on 2 charges under GAR 106(2) for the pain and suffering caused by not providing sufficient food and water for a period of time resulting in thin body conditions and a moderate amount of suffering.
48	In Mitchell, the VRT imposed a 4-year disqualification where the greyhound suffered unnecessary pain and suffering because of numerous injuries for at least 4-5 days before its euthanasia despite the offender realising the greyhound was lame.
49	In Graham, the RADB imposed a 5-year disqualification after a plea of guilty to a charge under GAR 106(2) in circumstances where the offender left 2 greyhounds in his car with a bucket of water and the windows slightly down. 1 greyhound died after some 12 hours. He pleaded guilty and demonstrated significant remorse.
50	The GRV submitted that the penalty the VRT imposed for the related offending the subject of charges 2 & 3 was well-within range, both individually, and in totality. Similar penalties were sought in this proceeding.
51	Concerning Charge 4, the GRV accepted that the offensive email and Facebook post were sent/posted while Mr O’Donnell was in difficult circumstances. 
52	The GRV considered that time to be a low-point in his life made worse by the severe illness of his mother, a marital break-up, and severe financial difficulties – all findings made by VRT. While other cases had seen a significant range of penalties imposed for offending committed in breach of this provision, the GRV did not seek any particular penalty. 
Discussion/Decision
53	VCAT is bound of the VRT’s findings on the charges. The Tribunal’s role is to review the VRT’s penalty decision, deciding whether to affirm, vary or set aside that decision.
Charge 1
54	The VRT’s decision concerning Charge 1 is affirmed.
55	It found that Charge 1, relating to a failure to provide kennels, proven because there were no kennels provided to house the greyhounds. The greyhounds had open space, fenced gates and neighbours on one side of Mr O’Donnell’s property. The dogs lived on matting at the rear of the house and it seems Mr O’Donnell was content with this arrangement. On his evidence, the greyhounds never got loose. The VRT found that as registered greyhounds, their kennelling was subject to the Rules of Greyhound Racing.
56	VRT’s decision to disqualify Mr O’Donnell for four months (now served long ago) is affirmed. The VRT’s findings demonstrate failure by Mr O’Donnell in housing the greyhounds in question.
57	Such failure is a significant matter, requiring a proportionate response to achieve general deterrence and to protect the industry’s reputation.
58	As described above, Mr O’Donnell made no relevant submissions concerning Allegation 1.
59	Turning to the GRV’s submissions, of four comparative decisions by the previous RADB, the VRT and VCAT with respect to GAR 106(1)(c), three resulted in suspensions wholly suspended. 
60	In Trickett, in 2019 investigative stewards carried out a kennel inspection at Mr Trickett’s training premises. They observed a kennel structure consisting of temporary cyclone fencing with three internal kennels separated by fencing panels. Until a few days before the inspection the kennels housed two dogs. One was a recent addition to Mr Trickett’s kennel. Stewards observed that one of the separating fences had collapsed and was sitting across the middle kennel restricting the movement of two of the greyhounds causing a lack of bedding and access to water. Also, there were pools of urine and piles of faeces in the kennels. Stewards directed Mr Trickett’s son to arrange for the cleaning and disinfecting of the kennels and for separate sleeping areas for each dog. In this context, Mr Trickett had failed to provide the greyhounds with sufficient drink. He pled guilty to a charge under GAR 106(1)(a), concerning insufficient drink and to a charge under GAR 106(1)(b) regarding housing.
61	The VRT commented that while Mr Trickett, in mitigation of penalty, raised the fact that none of the greyhounds were racing at the time and were retired, as a registered trainer having registered greyhounds at the property which is registered with GRV as his training base, he was obliged to comply with the rules of racing regarding proper kennels and access to water.
62	With respect to the insufficient drink charge, the VRT suspended him for six months fully suspended for 12 months on condition that Mr Trickett not offended against any animal welfare provisions of the rules of racing. No extra penalty was imposed under 106(1)(c). The VRT said that its approach on the question of penalty was informed by the then relatively recent VCAT decision, Trim v GRV-Racing Appeals and Disciplinary Board No 2 [2018] VCAT 383.
63	In Trim, the general conditions in which the greyhounds were being kept was generally unclean and unsanitary, in that kennelling facilities demonstrated a poor level of hygiene and sanitation, in that there was a large accumulation of faecal matter.
64	VCAT said that the circumstances did not reveal a stubborn or wilfully disobedient to authority attitude or behaviour by Mr Trim toward the welfare of his greyhounds. His response to questioning during the inspection of his property in 2016 and at subsequent hearings was ‘refreshingly frank and contrite’. Evidence revealed specific and clearly unacceptable deficiencies in the proper upkeep, cleanliness and maintenance of the yards and kennels, including bedding. There was no evidence that any greyhound was actually sick, injured or ailing. 
65	VCAT said, that while actual detriment to an animal was not a necessary element to the proof of the serious charges (which included 106(1)(c)), it was a relevant indication of the nature and gravity of the breaches and the period over which they might have persisted.
66	Mr Trim had responded to the situation by improving conditions at his property. He provided a number of supportive references from others in the industry. With respect to charges under GAR 106(1)(a) and 106(1)(c) and local rule of racing 42.1 VCAT suspended Mr Trim for six months, the suspension wholly suspended for 12 months.
67	In Ward, the registered greyhound trainer and breeder was in part charged under 106 (1)(c). Over February to May 2017, welfare inspectors found that there were issues with the kennels and outdoor areas that needed to be rectified. There was dirty or no available water for the greyhounds, insufficient and inadequate bedding and excessive faeces in external yards.
68	The RADB fined Mr Ward $1,000 and imposed a wholly suspended (for 24 months) three month suspension. It took into account a previous financial penalty for failing to provide veterinary attention to an injured greyhound, that Mr. Ward had, in recent times, vastly improved the state of his property, extenuating medical circumstances, Mr Ward’s good character and there was no suggestion that the dogs were in poor condition.
69	In Walker, Ms Walker in part faced a charge under 106(1)(c):
In that you did, between 1 June and 12 July 2016 being a registered person, fail to ensure that greyhounds, which were in your care and custody, were provided at all times with kennels constructed and of a standard approved by the Controlling Body which were adequate in size and which were kept in a clean and sanitary condition.
70	On that charge, VCAT disqualified Ms Walker for six months (disqualifications on other charges brought the total period to 29 months). VCAT accepted that in January 2016, a GRV animal welfare officer and welfare inspector attended Ms Waker’s property. They observed, 28 greyhounds (including 19 large pups) in pens. In three pens where there were kennels, only one dog was in each pen. There were 25 dogs in pens without any kennels. The dogs looked wet and cold. The dogs had their tails and heads down and they looked most uncomfortable and in distress. VCAT did not accept Ms Walker’s denials and was not impressed by her ‘long speeches and often at times during cross-examination [she] would not answer the question’.
71	As GRV submitted, the Trickett, Trim and Ward cases were not significantly comparable. Kennels were provided. The focus was on hygiene and cleanliness. 
72	Walker was closer to but on a different scale (worse) than here. Mr O’Donnell’s failures were less serious than those in the Walker case, where VCAT disqualified Ms Walker for 6 months.
73	In my view a four-month suspension is appropriate concerning this issue of animal welfare to provide general deterrence and protect the reputation of the industry. This is consistent the range of previous relevant penalties concerning charges under 106(1)(c).
Charges 2 & 3
74	These are the basis of the substantive contest here. The two year disqualification (for Charge 2) was fully served on 15 March 2023. The three year disqualification (for Charge 3) continues to 15 March 2024. In any case, whether served or not, disqualification is a serious matter of reputation and record.
75	The VRT’s decisions concerning Charges 2 and 3 are affirmed.
76	It found both charges proven, saying between 29 July to 12 September 2019, there should have been a direct consultation with Dr Bell or another veterinarian regarding Pie. 
77	There is no need to repeat the VRT’s findings as to the serious condition of the dog and relevant times leading to Pie being in significant pain when it was taken and euthanised on 12 September 2019. The VRT did not accept that Pie was injured after Mr O’Donnell had surrendered the dog to GRV.
78	Charge 2 was that Mr O’Donnell failed to provide veterinary attention when necessary, breaching GAR 106(1)(d), which resulted in the VRT imposing a two year disqualification.
79	As described above, Mr O’Donnell made no relevant submissions concerning Allegation 2.
80	The VRT set out the circumstances and explanation for Mr O’Donnell’s offending. As the VRT did, I have taken into account lack of money, mental health issues, family pressures, the positive testimonials supplied by Mr O’Donnell and that he has no relevant history of breaches.
81	That said, I have accepted the GRV’s submissions that given the condition of the dog and Mr O’Donnell’s failure to arrange for appropriate timely medical care a significant penalty is required. The nature of the significant penalty is to be decided in the context of equivalent cases.
82	In VRT v Grima (1/7/2020), a greyhound suffered a gaping wound to the neck after being bitten by another greyhound at Mr Grima’s kennel. While he applied a bandage, the need for urgent veterinary attention should have been obvious. When stewards discovered the dog six days after it had been bitten, Mr Grima falsely said he had taken it to a veterinarian. Mr Grima plead guilty to all charges. 
83	The VRT regarded the charge under GAR106(1)(d) as the most serious charge before it. Taking charges of this type concerning animal welfare extremely seriously, having regard to previous penalties in like matters, Mr Grima’s guilty plea, his distressing personal circumstances at the time and previous good record, the VRT imposed a 2 year disqualification and under GAR 106(2) fined him $1,500.
84	In VRT v Barnard (17/7/20), on 1 March 2019, Ms Barnard was transporting her greyhounds to Traralgon as a result of the Bunyip bush fire. When several dogs were loaded into a vehicle, the last greyhound loaded was immediately attacked by other greyhounds. Ms Barnard was immediately aware of the dog’s injuries but said she could not afford to take it to a vet. An associate provided an unqualified insufficient treatment. The dog would have been in pain and should have been taken to a vet. On 3 March 2019 the dog was taken and euthanised with Ms Barnard’s agreement. Ms Barnard pleaded guilty to charges and was remorseful. In Barnard, stressing that animal cruelty is to be deplored and its occurrence gives ammunition to those that would seek to ban the sport, under GAR 106(1)(d) the VRT fined her $1,500 and under 106(2) disqualified her for three years.
85	In RADB v Hammerstein (1/4/2019), the particulars to a charge under 106(1)(d) provided that on 3 January 2018, a greyhound was examined by a veterinarian at the Shepparton Greyhound Racing Club, who diagnosed a pre-existing tail injury which presented with marked amount of arterial bleeding, one centimetre of exposed coccygeal vertebrae and a moderate amount of necrotic, infected tissue. The day after the greyhound was presented to Dr. Bell for treatment, and 3 January 2018, Mr Hammerstein failed to obtain further veterinary attention to the greyhound when such attention was necessary. He pled not guilty. Concerning the GAR 106(1)(d) charge, with Mr Hammerstein having long involvement in the industry with a clean record, he was was fined $300. Concerning a related charge under 106(2), he was disqualified for three months.
86	The similarities between these cases and the situation here in terms of a greyhound that is suffering, with an owner in difficult circumstances, where strong general deterrence and protection of the reputation of the industry is vital are striking.
87	In terms of the aggregate result, where charges are bought under GAR 106(1)(d) and 106(2), lengthy disqualification is to be expected. That said, the short disqualification in Hammerstein is difficult to understand.
88	In my view, a two year disqualification on Charge 2 is appropriate, again in the interests of general deterrence and the upholding of the industry reputation.
89	Charge 3 was that Mr O’Donnell failed to exercise reasonable care and supervision necessary to prevent unnecessary pain or suffering, breaching of GAR 106(2), which resulted in the VRT imposing a three year disqualification
90	Mr O’Donnell’s submissions concerning Allegation 3, attempting to distinguish the decisions in Morris (eight year disqualification), Mitchell (four year disqualification) and Graham (five year disqualification) failed to do so. The value of those decisions lies in similarity of unnecessary suffering caused by a range of factors, mitigating factors in favour of trainers and still substantial disqualifications in the cause of general deterrence and protection of the reputation of the industry.
91	In Morris, the VRT said the charges against Mr Morris were very serious. He had failed to properly feed two greyhounds, causing unnecessary pain and suffering. He had not co-operated with the Stewards and had chosen not to appear before the VRT. The greyhounds were left by him in a terrible condition. The VRT said no greyhound should be left in pain and suffering as a result of neglectful conduct by a registered participant. Concerning two charges under GAR 106(2), the VRT imposed five-year disqualifications for each of the charges, with two years cumulative resulting in an eight year disqualification.
92	Relying on the GRV’s submissions, in Mitchell the VRT imposed a 4 year disqualification where the greyhound suffered unnecessary pain and suffering because of numerous injuries for at least 4-5 days before its euthanasia despite the offender realising the greyhound was lame.
93	The, appropriately high, standards expected of registered trainers are seen in the VRT’s Graham decision. Following the in car death of one dog, ‘a momentary lapse but with dire consequences that demand[s] a significant penalty’, Mr Graham reported the death, was cooperative and remorseful and had a clean record as a trainer. The VRT imposed a five-year disqualification.
94	In RADB v Richey (21/12/18), on 31 August 2017, a greyhound suffered a closed fracture of the left hock and was treated by the on track veterinarian who directed Mr. Richey to present the greyhound to a veterinarian the next day. Claiming that a quote for a radiograph from a veterinarian was too expensive, Mr Ritchey did not take the dog to the vet but obtained some painkillers from the on track veterinarian, which would have provided limited relief. On 13 September 2017 Mr Richey turned the dog over to the on track vet. Due to its obvious discomfort, the dog was euthanised. With pain suffered by the dog totally unnecessary, the product of Mr Richey not wanting to pay for treatment, on the “more serious charge under GAR 106(2)”, the RADB disqualified Mr Ritchey for six months and fined him $500, noting Mr Ritchey had not shown remorse.
95	Again, with a greyhound that is unnecessarily suffering, even where an owner in difficult circumstances, the need for strong general deterrence and protection of the reputation of the industry is vital. A three year disqualification is appropriate.
Charge 4
96	Charge 4, which was proven, was that Mr O’Donnell engaged in, or published contemptuous, insulting or offensive language in relation to the controlling body, breaching of GAR 86(f).
97	The VRT viewed his conduct as serving more as a distress signal when Mr O’Donnell was clearly not well. He was caring for his elderly mother, had very little money, there were interfamily relationship difficulties and he could not afford to keep the greyhounds. It fined him $400.
98	Given the VRT’s findings as to mitigating factors, particular that his conduct was more in the nature of a distress signal, while the message here is there is no excuse for breaching GAR 86(f), a low fine is appropriate. The VRT’s decision is affirmed.
99	But for the mitigating factors, the penalty would have been close to comparative cases, where higher penalties were imposed:
•	RADB v Ferguson (27/4/2018) – Facebook post alleged that a senior steward was sacked for theft of company property from his previous employment and sold items for money, no remorse, stood by comments, disqualified for 12 months;
•	RADB v Long (26/6/2018) – Facebook posts were ‘offensive, defamatory, unseemly and disgusting’, apology, significant mitigating circumstances, disqualified for three months with one month suspended for 12 months; and
•	RADB v Jaensch (1/3/2019) – an email to stewards titled ‘corruption or personal attack’ contain insulting and threatening comments towards GRV staff, pled guilty, apologise and showed remorse, clean record, three month disqualification with two months suspended for 12 months.
Concurrency
100	It is appropriate that the disqualifications be served concurrently. The VRT’s decision on concurrency is affirmed. 

Ian Proctor
Deputy President