INQUIRY NUMBERS: EXP186, EXP187 and EXP188 of 2016 Mark Farrugia, Stephen Farrugia, Donna Farrugia (the Farrugias)

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1 DECISION INQUIRY NUMBERS: EXP186, EXP187 and EXP188 of 2016 PARTICIPANTS: Mark Farrugia, Stephen Farrugia, Donna Farrugia (the Farrugias) PANEL MEMBER(S): Mr Adrian Anderson (Steward) DATE OF DECISION: 23 October 2017 Background information 1. The terms of reference of this Inquiry into the Unauthorised Export of Greyhounds (Inquiry) were finalised by GRNSW on 11 January The Inquiry is chaired by myself as a steward appointed under the GRNSW Greyhound Racing Rules (Rules). I am assisted by investigator, Mr Paul Nahmias. 2. Rule 124(1) of the Rules requires that any person intending to export a greyhound from Australia to any other country (excluding New Zealand) must, prior to meeting the quarantine and inspection service requirements of the relevant country, obtain a greyhound passport and certified pedigree issued by Greyhounds Australasia (GA). 3. GA has suspended consideration of greyhound passport applications to Macau since March 2013 due to a GA assessment that Macau is not fully compliant with Australian animal welfare standards. 1 In 2014, GA adopted the default position that it would not issue greyhound passports for greyhounds which are to be exported for racing, breeding or pet purposes to countries where GA has no formal association with a recognised central regulatory authority. China is one such destination. GA has not issued any passports where the destination was China since that position was adopted. 4. This decision is part of the broader Inquiry into the unauthorised export of greyhounds to China and Macau. 179 industry participants were charged in 2016 for offences relating to potential breaches of Rule 124(1). Information those participants provided to the Inquiry led to charges against Mark, Stephen and Donna Farrugia as well as Sam and Patricia Cauchi. This decision concerns the determination of the charges against the Farrugias. The charges against the Cauchis are yet to be determined and investigations concerning export of other greyhounds to Macau and China are ongoing. 5. Although export of greyhounds without a passport may be contrary to Rule 124(1), there is no Federal government law prohibiting it. The greyhound passport scheme is not part of the export approval process undertaken by the Commonwealth Department of Agriculture and Water Resources (the Department of Agriculture). The lack of a greyhound passport does not preclude a greyhound from being exported from Australia and the Federal regulatory scheme does not take account of the animal welfare standards of the destination country. The Farrugias appear to have complied with all Department of Agriculture requirements and quarantine procedures in relation to the greyhound exports which are the subject of this decision. The Department of Agriculture has thus far declined access to the Inquiry to various documents concerning the exports. This has necessitated other avenues of inquiry and heightened the importance of the Farrugias cooperation in providing documents and admissions. 1 Review of Australian Greyhound Export Welfare Standards published by GA in June

2 Disciplinary powers of GRNSW and its Stewards 6. Although parts of the Greyhound Racing Act 2017 (NSW) commenced on 3 July 2017, GRNSW and its Stewards still ultimately derive their statutory disciplinary authority from the Greyhound Racing Act 2009 (NSW) (the Act). 7. Section 10 of the Act sets out the powers of GRNSW and includes the power to supervise the activities of greyhound racing clubs, persons registered by GRNSW and all other persons engaged in or associated with greyhound racing Section 21(1) of the Act is part of Division 1 and states as follows: (1) GRNSW may, in accordance with the rules, do any of the following: (a) cancel the registration under this Act of: (i) any greyhound racing club, or (ii) any greyhound trial track, or (iii) any greyhound, or (iv) any owner, trainer or bookmaker or other person associated with greyhound racing, (b) disqualify, either permanently or temporarily, any owner, trainer or bookmaker or other person associated with greyhound racing, (c) disqualify any greyhound, either permanently or temporarily, (d) prohibit any person from participating in or associating with greyhound racing in any specified capacity, (e) prohibit any greyhound from competing in any greyhound race or trial, (f) impose fines, not exceeding 200 penalty units, on any greyhound racing club or on any owner, trainer or bookmaker or other person associated with greyhound racing for breaches of the rules, (g) suspend, for such term as GRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or bookmaker or other person associated with greyhound racing, (h) prohibit any person registered under the rules from taking part in any greyhound racing meeting held by any greyhound racing club that is not registered under the rules. 9. Section 23 of the Act provides GRNSW may make rules with respect to the control and regulation of greyhound racing including: any of the matters referred to in Division 1; 3 the appointment of stewards by GRNSW and the functions of those stewards (including functions that do not relate to greyhound racing meetings); and 4 conferring on stewards appointed by GRNSW the function of enforcing the rules Rule 95(1) of the Rules concerns penalties and states as follows: A person found guilty of an offence pursuant to or a breach of these Rules shall, at the discretion of the Controlling Body or the Stewards be liable to any or combination of a- (a) fine not exceeding such amount as specified in the relevant Act or Rules for any one (1) offence; (b) suspension; (c) disqualification; (d) cancellation of registration; or (e) warning off as the Controlling Body or Stewards see fit. 11. Rule 95(3) describes that any portion of the penalty imposed may be suspended for such time and pursuant to such conditions as ordered by the Controlling Body or Stewards. 2 S10(2)(b) of the Act 3 S23(2)(a) of the Act 4 S23(2)(j) of the Act 5 S23(2)(k) of the Act 2

3 12. Rule 92(4) states that: Matters to which the Controlling Body or Stewards must have regard are- (a) the character and antecedents of the person charged; (b) the nature of the breach and the circumstances in which it was committed, in particular, the seriousness of the breach and any negligence, recklessness or indifference of the person charged; (c) whether the person has denied or admitted the charge. 13. Rule 97 is titled Cumulative Penalties and states as follows: If a person or a greyhound- (a) is disqualified or suspended on any occasion for more than 1 period; or (b) has been previously disqualified or suspended for any period and during that period is again disqualified or suspended, any period of disqualification or suspension other than the first or any further period of disqualification or suspension is, if the Controlling Body or the Stewards so directs, to be cumulative. 14. It can be seen from the above analysis that the disciplinary powers of GRNSW and its Stewards pursuant to the Rules are not restricted to registered persons. Summary of charges, process and findings The first group of charges (predominantly concerning greyhounds exported to Macau) 15. On 21 November 2016, the Farrugias were notified by letter and an accompanying brief of evidence (the Original Brief) that the following charges were laid against them under the Rules: a. ninety-eight charges for export of 98 greyhounds under Rule 124(1); b. forty-one charges for failing to lodge documents required under Rule 117(2); c. forty-one charges for failing to lodge documents required under Rule 117(1); d. ninety-six charges for failing to lodge documents required under Rule 106(3); e. one charge of misconduct under Rule 86(o); f. one charge of conduct detrimental or prejudicial under Rule 86(m); g. one charge under Rule 86(n); and h. one charge under Rule 86(q). (The first group of charges). 16. Rule 124(1) as it applied on and subsequent to 1 January 2010 states: Any person intending to export a greyhound, being the subject of these Rules or to those of a relevant Registration Controlling Body, from Australia or New Zealand to any other country (excluding Australia or New Zealand) must, prior to meeting the quarantine and inspection service requirements of the relevant country, obtain a greyhound passport and certified pedigree issued by Greyhounds Australasia. 17. Rule 117(2)(a) as it applied on and subsequent to 1 July 2014 states: A person who purchases or otherwise acquires a named greyhound shall: (a) within 10 days lodge with the Controlling Body a prescribed transfer of ownership form containing the signature of the previous registered owner together with the prescribed fee and the certificate of registration for the greyhound. 18. Rule 117(2) as it applied prior to 1 July 2014 states: A person who purchases or otherwise acquires a named greyhound shall within 10 days, or if entered for an event forthwith, lodge with the Controlling Body a prescribed transfer of ownership form together with the prescribed fee and the certificate of registration for the greyhound. 19. Rule 117(1) as it applied on and subsequent to 1 January 2013 states: On the sale or disposal of a named greyhound the transferor shall: (c) within 10 days lodge with the Controlling Body a prescribed transfer of ownership form. 3

4 20. Rule 106(3) as it applied through to 1 October 2015 states: At any time after the registration of a litter, the last registered owner or person responsible for the greyhound at the relevant time, shall, notify the Controlling Body by lodging the prescribed form: (a) Within ten working days, if that greyhound has transferred ownership, been retired as a pet or a breeding greyhound, been transferred to an adoption program, exported, surrendered to another agency. 21. Rule 86(m) as it applied through to 1 January 2016 states: A person (including an official) shall be guilty of an offence if the person attempts or conspires with another person to commit a breach of these Rules. 22. Rule 86(n) as it applied through to 1 January 2016 states: A person (including an official) shall be guilty of an offence if the person knowingly aids, abets, counsels or procures a person to commit a breach of these Rules. 23. Rule 86(o) as it applied through to 1 January 2016 states: A person (including an official) shall be guilty of an offence if the person has, in relation to a greyhound or greyhound racing, done a thing, or omitted to do a thing, which, in the opinion of the Stewards or the Controlling Body, as the case may be, is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct. 24. Rule 86(q) as it applied through to 1 January 2016 states: A person (including an official) shall be guilty of an offence if the person commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of greyhound racing. 25. The Farrugias were given until 5 December 2016 to respond to the first group of charges. 26. On 15 December 2016, GRNSW received a letter from the Farrugias former legal representative, Mr Hamish Cockburn, outlining various matters on behalf of the Farrugias. 27. On 22 December 2016, the Farrugias were directed by letter to respond to the charges by no later than 20 January On 20 January 2017, Mr Cockburn informed me by that the Farrugias were on holidays and that a response to the charges would be received by no later than 24 January Mr Cockburn also advised that he was no longer instructed to act on behalf of the Farrugias. 29. On 24 February 2017, the Farrugias were notified by letter that they were taken to have pleaded not guilty to all of the charges after failing to respond to the charges. I notified them of my intention to schedule a hearing to resolve the matter. 30. On 23 March 2017, the Farrugias were notified by letter of the hearing at GRNSW scheduled for 30 March On 30 March 2017, Mark and Stephen Farrugia attended the Inquiry. Donna Farrugia did not attend. Mark and Stephen Farrugia pleaded to and were each found guilty of the following: 1. the ninety-eight charges under Rule 124(1); 2. the forty-one charges under Rule 117(2); 3. the forty-one charges under Rule 117(1); 4. the one charge under Rule 86(o); and 5. the one charge under Rule 86(q). 32. Two of the ninety-eight charges under Rule 124(1) (NBHFD - Brief reference B27 and NBHFC Brief reference B28) concerned the export of those two greyhounds to Dubai. The terms of reference of this Inquiry concern the export of greyhounds to Macau and China and I withdraw the findings of guilt for Mark and Stephen Farrugia in relation to those two charges. 33. At the Inquiry on 30 March 2017, Mark and Stephen Farrugia were both found not guilty of the ninety-six charges under Rule 106(3), the one charge under Rule 86(m) and the one charge under Rule 86(n). 4

5 The second group of charges (greyhounds exported to Shanghai) 34. The following second group of charges were laid against the Farrugias on 20 June 2017 together with a further brief of evidence (the China brief): a. two charges under Rule 124(1) for two shipments of greyhounds to China on 17 May 2013 (40 greyhounds) and 20 November 2015 (30 greyhounds); b. twenty-five charges under Rule 117(2); c. twenty-five charges under Rule 117(1); d. one charge under Rule 86(o); e. one charge under Rule 86(q); and f. one charge under Rule 86(n) in respect of Donna Farrugia only (The second group of charges). 35. The Farrugias were given until 4 July 2017 to respond to the second group of charges. 36. On 22 June 2017, Mark and Stephen Farrugia attended before the Inquiry in relation to the second group of charges. Donna Farrugia did not attend. Mark and Stephen Farrugia pleaded to and were found guilty of all of the second group of charges (except the Rule 86(n) charge laid only against Donna Farrugia). 37. On 28 June 2017, Donna Farrugia was directed by letter and to respond to charges from 21 November 2016 and 20 June 2017 by no later than the final deadline of 4 July Donna Farrugia did not respond to any charges, and is taken to have pleaded not guilty to all charges. Findings on liability for Donna Farrugia 39. In considering the charges against Donna Farrugia I have had regard to the following information: a. OzChase records; b. Yat Yuen Canidrome (Macau Canidrome) records; c. correspondence from previous owners / trainers of relevant greyhounds; d. the 7.30 Report transcript (9 December 2015); e. the testimony of Mark, Stephen and Donna Farrugia from interviews on 20 November 2015 and 8 September 2016; f. the testimony of Mark and Stephen Farrugia from inquiries on 30 March 2017 and 22 June 2017; and g. other information contained within the briefs of evidence provided to Mark, Stephen and Donna Farrugia in connection with these charges. 40. Donna Farrugia participated in the interviews conducted on 20 November 2015 and 8 September In the 20 November 2015 interview, Donna Farrugia demonstrated a thorough knowledge of the details of the export of the greyhounds and her participation in the process of exporting them. 42. In the 8 September 2016 interview, Donna admitted that she filled out the AQIS quarantine forms for the exports at page Donna also stated 'there is a paper trail for every dog' and that she filled out the paperwork updating the statuses of dogs owned by Stephen Farrugia at page 46 of the transcript. 44. In the 8 September 2016 interview, Donna Farrugia talked of her participation in the business and the exports, such as at page 31 of the transcript, where she stated 'as a business, as us, we just bought the dog'. 45. At the Inquiry on 30 March 2017, Donna did not attend and Stephen Farrugia said 'My wife, all she does is our paperwork' (page 7 of the transcript) and Donna, she wasn t involved in the export, she just she done a bit of she done our paperwork that we couldn t fill out' (page 17 of the transcript). 5

6 46. At the inquiry on 22 June 2017, Mark and Stephen Farrugia described Donna s role as 'a secretary'. 47. I find that Donna Farrugia was fully aware of the export of the greyhounds and actively participated in the exports by coordinating the paperwork and approvals required by AQIS and the Department of Agriculture for the export of the dogs. In her role managing the GRNSW paperwork for the family, she was also involved in the failure to lodge the necessary documentation under Rules 117(1) and (2) following acquisition and disposal of the greyhounds. 48. I find Donna guilty of the charge 86(n) of the Rules in the second group of charges in that she knowingly aided and abetted Stephen and Mark Farrugia to commit breaches of Rules 124(1), Rule 117(1) and (2), Rule 86(o) and Rule 86(q) of the Rules, as reflected in both the China Brief (relating to the second group of charges) and the Original Brief of Evidence (relating to the first group of charges). This charge encompasses the conduct alleged in the charge under Rule 86(n) of the first group of charges. Accordingly I withdraw the charge under Rule 86(n) of the first group of charges, laid on 21 November I find Donna Farrugia not guilty of the remaining charges. Participants submissions as to penalty 50. On 30 March 2017, Mark and Stephen Farrugia made oral submissions in relation to penalty concerning the first group of charges. In summary they submitted: a. they were sorry and never would have done it if they knew their actions were against the Rules; b. they had obeyed all Department of Agiculture rules relating to the exports; c. in their 20 years in the greyhound racing industry Mark and Stephen have conducted their business in good faith and prioritised the welfare of the greyhounds; d. the Farrugias primary business is education of greyhounds, not exporting of greyhounds; e. they had made admissions, apologised and showed remorse for their actions; f. the 7.30 Report episode featured footage of the slaughtering of greyhounds in Vietnam which was approximately 15 years old; g. their families had suffered threats and public backlash following the 7.30 Report episode; h. the condition and treatment of greyhounds they observed in Macau and China was not in their view substandard; i. a large number of greyhounds they exported were going to be put down if they weren t exported; j. their property had only been inspected once in approximately 18 years by GRNSW compliance officers and stewards prior to airing of the 7.30 Report episode on 9 December 2015; k. disqualifying them would have a negative impact on the industry given the role of the Glengarrie Trial Track (Glengarrie) in the education and rearing of greyhounds in NSW; l. they are not required to be registered as rearers or educators and their activities in rearing and educating many thousands of greyhounds in NSW have been largely unsupervised; and m. they considered a suspended sentence to be an adequate penalty. 51. On 5 April 2017, Stephen Farrugia provided further written submissions on behalf of the Farrugias by to me. In this correspondence, the Farrugias submitted amongst other things: a. in the 18 to 20 year history of Glengarrie they only had one kennel inspection by GRNSW prior to the 7.30 Report episode; and b. they did not think they were doing anything wrong by sending greyhounds overseas as this practice was going on for many years prior. 6

7 52. On 20 June 2017, Mark and Stephen Farrugia made oral submissions in relation to penalty concerning the second group of charges. In summary they submitted: a. they were unaware that their actions were against the Rules; b. that they play a major role in the breeding and rearing of the greyhounds in NSW but are not regulated in this activity by the industry and have not been for more than 18 years; c. the lack of guidance they received from GRNSW and the greyhound racing industry with regards to their business practices and compliance; d. they never attempted to conceal their actions and publicly advertised they were looking for dogs for export; e. they were never warned about the need for licences to export greyhounds to Macau and China despite the openness of their export activity; and f. at the time they entered the industry, it was common practice to export greyhounds to China. 53. I have considered all of these submissions. Consideration in relation to penalty 54. As the Racing Appeal Tribunal (NSW) has noted on several occasions, these are civil disciplinary proceedings in which it is necessary to have regard to the conduct which has been disclosed, to have regard to all the relevant facts and circumstances relating to the facts themselves and those of the individual persons concerned, and then looking to the future to determine what order is required within the scope and purpose of the Rules. The scope and purpose of the Rules relevant to export offences enlivens the issues of the welfare of the greyhound. 55. The Farrugias have operated Glengarrie for over 18 years. Once Glengarrie was built and was successful, they saw there was a demand for the education of greyhounds. Education of greyhounds is the main interest of their business in the greyhound industry and up until recently they have educated 100 to 150 greyhounds per month. The business was successful and they recently sold the property for a handsome profit. They wish to continue their business with greyhounds at new premises. 56. Despite the importance of this activity and its relevance to the welfare of greyhounds, a licence has not been required to educate and rear greyhounds throughout this period. The available records indicate that Glengarrie was inspected just once in its many years of operation prior to Ozchase records indicate that another inspection took place prior to the cessation of exports by the Farrugias on 12 February These offences relate to the export of the following greyhounds: a. 40 greyhounds to Shanghai on 17 May 2013; b. 96 greyhounds predominantly to Macau from ; c. 30 greyhounds to Shanghai on 20 November The greyhounds exported to Shanghai were delivered to Shanghai Wild Animal Park which conducted exhibition racing of greyhounds. The greyhounds exported to Macau were delivered to Macau Canidrome, the only greyhound racetrack in Macau. 59. These greyhounds were exported in accordance with Federal Department of Agriculture requirements and the Farrugias obtained the necessary permits and vaccinations under the law. The Department of Agriculture export process did not require nor mention compliance with the GRNSW export rules. 60. The Farrugias gave evidence that the majority of these greyhounds were purchased for $500 and sold for between $2100 and $2700. Mark Farrugia estimated $300 profit per dog after expenses associated with quarantine, vaccination, flights, and boxes. Based on the Farrugias own estimates to the Inquiry, the profit from the exports totaled approximately $50,000 after deduction of relevant expenses. 6 The recorded inspection date from Ozchase records was 5 July

8 61. Mark and Donna Farrugia were interviewed on Friday 20 November 2015 and cooperated fully. They were unaware of the Rule regulating exports of greyhounds before this time. They had openly advertised for the purchase of greyhounds for export with pamphlets at Richmond Trial Track and Glengarrie stating Dogs wanted for overseas. Must run and better (300m). The Farrugias have not exported any greyhounds since 20 November The export of greyhounds from Australia to Macau was part of the subject of 7.30 Report television episode titled Australian greyhounds deemed too slow exported to Macau which aired on ABC on 9 December The program included footage concerning the export of greyhounds to Macau by the Farrugias. The program rightfully raised community concern about animal welfare issues arising in connection with the export of greyhounds to countries with inferior animal welfare laws and standards. 63. The business of Glengarrie is conducted via Blue High Group Pty Ltd and the permits to export the greyhounds from the Department of Agriculture and Water Resources were in the name of Blue High Group Pty Ltd. Mark Farrugia is and was at relevant times the sole director of Blue High Group Pty Ltd. Mark and Stephen Farrugia are each 50% shareholders. Regardless of the corporate structure, I am satisfied from the evidence of Mark and Stephen that they both own the property and conduct the business together with effectively equal responsibility. Stephen acknowledged at the inquiry on 30 March 2017 that 'we all basically work together as one' at page 69 of the transcript. In particular I consider that there is no basis to differentiate between Mark and Stephen s roles in the exports. 64. Stephen Farrugia has four previous fines for relatively minor offences of failing to lodge documentation required under Rule 137 (twice), Rule 132(6) and Rule 136(1). There are no known prior offences for Mark and Donna Farrugia. 65. Ozchase records indicate that Stephen is currently registered as an owner under the Rules and has been since 19 March Mark was registered in the category of owner/trainer in the period from 1 April 1995 to 30 September It does not appear that Mark or Stephen were required to sign any forms on becoming registered as owner or owner/trainer which required compliance with the Rules. There does not appear to be any evidence that they were provided with the Rules as part of the registration process or received any education in relation to them. There does not seem to have been any reference to the need for compliance with the Rules as part of the registration process. This by no means excuses failure to comply with the Rules, but is relevant to consideration of penalty in this matter in the manner outlined below. 66. Rule 124(1) itself is designed to protect the welfare of greyhounds. It is designed to prevent export of greyhounds to countries which do not meet GA s animal welfare standards. The GA Board introduced the national greyhound passport rule on 24 February 2004 and wrote to all GA members (the nine state and territory controlling authorities and the New Zealand Greyhound Racing Association) advising of the decision and the original wording of the rule that was adopted in May The rule was enforced from 1 July GA permitted passports to be issued for greyhounds being exported to Macau until the last issuance of nine passports to Macau on 6 March In May 2012, GA had commenced a review into the animal welfare standards of host countries importing Australian greyhounds. This review identified Macau as not fully compliant and the original decision to suspend greyhound passports to Macau was made by the GA Board on 1 March GA s final report into animal welfare standards in overseas jurisdictions titled Review of Australian Greyhound Export Welfare Standards, including its 12 recommendations, was adopted by the GA Board on 13 June 2014 (the Review). The Review recommended continuing the suspension of passports to Macau until that jurisdiction was assessed as close to fully compliant or fully compliant with GA s Required Standards for Countries Seeking to Import Australian Greyhounds. The Review identified, inter alia, the following welfare concerns: a. track preparation and maintenance (noting that the maintenance and preparation of the race surface could improve); 8

9 b. housing and kennelling (noting that many of the kennels were smaller than required under Australian codes of practice and 'the housing conditions, although practical and clean, are dated and worn ); c. injury rates (euthanasia rates due to serious injury were described as alarmingly high ); d. exercise (daily exercise was insufficient for optimal welfare outcomes); and e. GAP program (extremely low number of greyhounds likely to be adopted). 70. This highlights the importance and role of Rule 124(1) in protecting the welfare of greyhounds and the conditions endured by the greyhounds exported to Macau by the Farrugias, not to mention the stress occasioned to them by transportation. This in turn highlights the objective seriousness of the Rule 124(1) and the associated offences. 71. Recommendation 6 of the Review states that 'as a default position, GA recommends that no greyhound passports be issued for greyhounds which are to be exported for racing, breeding or pet purposes to countries where GA has no formal association with a recognised central racing authority.' China was, and remains, one such destination. 72. The Review (Recommendation 7) also recommended that applications for export to unregulated jurisdictions such as China be considered on a case by case basis; and only issued when the passport applicant satisfactorily proves that the unregulated jurisdiction complies with GA s Required Standards for Countries Seeking to Import Australian Greyhounds. GA has not issued any passports where the destination was China since the recommendations were approved. 73. GA s original decision of 1 March 2013 to suspend exports to Macau was not communicated widely within the industry. Known exporters to Macau were informed of the decision by letter but there does not appear to have been any broader communication of the decision such as by industry publications or any other form of notification to participants. The Farrugias were not informed of this decision by GA or GRNSW. 74. GA s position on exports following the adoption of the recommendations of the Review on 13 June 2014 was also notified by letter to known exporters and publicised via a media release on 24 June 2014 and a copy was placed on the GA website. It appears that the revised position on exports was not publicised to participants more broadly than that by GA or GRNSW. There does not appear to have been any more direct form of communication with participants via industry publications or the like. The Farrugias were not informed of the adoption of the recommendations of the review and its ramifications for exports to Macau and China by either GRNSW or GA. This of course does not absolve the Farrugias of their obligation to abide by the Rules, but is of some relevance to penalty in this matter on the basis outlined below. 75. I have had difficulty in this case in finding matters of direct parity due mainly to the lack of previous reported offences under Rule 124(1). 76. In Queensland, there have been six cases relating to breaches of Rule 124(1) concerning exports to Macau, China and Dubai. Four of these cases resulted in a reprimand, and the other two resulted in small fines. In NSW in the matter of Dunphy on 29 September 2017, a GRNSW Inquiry Panel fined Michael Dunphy $1000 for exporting a greyhound to the United Kingdom in contravention of Rule 124(1). In Victoria in the matter of Vassallo on 3 October 2017 GRV Stewards fined Wayne Vassallo $2000 for exporting two greyhounds to Ireland in breach of Rule 124(1). The United Kingdom and Ireland do not raise animal welfare considerations to the same extent as Macau and China. In addition, these were all small scale cases of unauthorised exports. The scale of the Farrugias unauthorised exports and their role in coordinating this volume of exports to Macau and China is unprecedented. 77. I have also had regard to a recent NSW case involving large scale and serious animal welfare offences in the matter of Thomas Pullman (GRNSW Inquiry 16S111). In that decision, Mr Pullman was disqualified for 10 years for a charge under Rule 86(q) in that he intentionally killed for reasons other than emergency euthanasia a substantial number of the 99 greyhounds which were found buried at the Keinbah Trial Track Property. Such greyhounds had been killed by him, by gunshot or by being struck with a blunt object to the skull. 9

10 Mr Pullman pleaded not guilty, did not cooperate with stewards and had in fact attempted to deceive them. While the offending of Mr Pullman and the Farrugias are both extremely serious, I consider Mr Pullman s conduct to have been of markedly higher seriousness that that of the Farrugias. 78. In Greyhound Racing Victoria Stewards v Chalker (Review and Regulation) [2017] VCAT 1312, the Victorian Civil and Administrative Tribunal affirmed the decision of the Victorian Racing Appeals and Disciplinary Board to disqualify Kerry Chalker for a period of 10 years for live baiting offences, and referred to the importance of imposing penalties for 'protective reasons, to preserve the integrity of greyhound racing by imposing penalties sufficient to deter a person 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' I accept the Farrugias have shown contrition, remorse and insight into their wrongdoing and considerations akin to specific deterrence do not loom large in this case. 80. Considerations akin to general deterrence are, however, extremely important to a penalty such as this. The message has to be clear that this sport will no longer suffer offences which jeopardise the welfare of greyhounds and tarnish the image and reputation of the sport in the eyes of the public. In particular, greyhound racing in NSW will not tolerate the unauthorised export of greyhounds to countries that do not have adequate animal welfare standards. This message must be given to those that have committed breaches, as well as other licensed persons and the community with an interest in greyhound racing and the broader community who observes its conduct. 81. Although the conduct of the Farrugias had not directly jeopardised animal welfare to the same extent as live baiting or killing greyhounds for reasons other than emergency euthanasia, the large scale, unauthorised export of greyhounds to China and Macau is serious misconduct under the Rules and has placed a number of greyhounds at risk of stress, exposure to substandard kennel conditions, substandard racing conditions, high rates of injury and euthanasia, a lack of suitable post racing arrangements, and an environment with inadequate animal welfare laws and enforcement. 82. The Farrugias offences have also undermined the reputation and image of the sport in the community. Conduct contrary to the welfare of greyhounds has severely damaged the reputation and image of the greyhound industry and even threatened its existence in NSW. Not only was the conduct of the Farrugias detrimental to the welfare of the exported greyhounds, but it was seriously detrimental to the interest, welfare, image, control or promotion of greyhound racing in NSW. 83. If it were not for exceptional mitigating circumstances in this case, I would have disqualified Mark and Stephen Farrugia for a period of 5 years each for the offences under Rule 124(1), Rule 86(o) and Rule 86(q) without suspending any of the period of disqualification. This would have been in addition to what appear to be the maximum applicable fines. 84. In the cases of Mark and Stephen Farrugia, however, the following substantial mitigating factors apply: 1. Their early guilty pleas. 2. Their full cooperation with the inquiry including provision of incriminating documents which were otherwise not available to the Inquiry. 3. Their good records and contribution to the industry over more than 18 years as educators and rearers of many thousands of greyhounds. 4. They complied with all Department of Agriculture requirements in relation to the exports and were never advised by the Department of Agriculture of GRNSW s requirement of passports for exports of greyhounds. 5. They were not aware that it was an offence to export greyhounds in the following circumstances: i. the hitherto failure of the industry to register, regulate or educate rearers and educators of greyhounds despite the importance of the role they play in the industry and its relevance to animal welfare; 7 See Corstens v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1106 at [19] 10

11 ii. iii. iv. although known exporters were notified of the decisions of GA of 1 March 2013 and 13 June 2014 concerning greyhound passports to Macau and China, the Farrugias received no such notification and could not be expected to have received such notification; they openly advertised at Glengarrie and Richmond for the purchase of dogs for export and were never informed by the authorities of the requirement to obtain passports; and I have seen no evidence of any communication with the Farrugias from GRNSW or GA concerning the export rules or any public communication which they could have been expected to receive. 6. They ceased exporting greyhounds when they became aware it was against the Rules following the 20 November 2015 exports. 85. In relation to mitigating factor 5, I note that ignorance of the rule is no excuse. The Farrugias were still obliged to ensure that their activities complied with the Rules of GRNSW. Their ignorance is, however, of some mitigatory effect in the unusual circumstances outlined above. I note in this regard that rearers and educators of greyhounds such as the Farrugias can expect in future to be required to be registered with the Greyhound Welfare and Integrity Commission and can expect to be better regulated and educated concerning the requirements of the Rules in the future. 86. Specifically in relation to Donna Farrugia, I accept that Mark and Steven Farrugia are the primary offenders and are more culpable. They purchased the greyhounds and were the exporters of them. Donna Farrugia was, however, closely involved and participated in the exports. 87. Donna Farrugia pleaded not guilty by not responding to the charges but did participate in the interviews on 20 November 2015 and 8 September In the course of doing so she made significant admissions and provided significant assistance to the Inquiry, although she later failed to attend the Inquiry on multiple occasions when requested to do so. 88. Donna Farrugia has been a participant in the industry together with Mark and Stephen for more than 18 years and has no prior offences. Like Mark and Stephen, there is nothing to suggest that she knew the export of the greyhounds was prohibited without a passport. 89. She assisted Mark and Stephen to ensure they complied with all Federal government requirements for the exports and did not receive any notification from the Department of Agriculture or AQIS of the need for a passport from GRNSW for the exports. Penalties and Conclusion 90. For the purposes of penalties for Mark and Stephen Farrugia, the above offences will be grouped into export offences, conduct prejudicial offences, misconduct offences, and registration offences. 91. Mark and Stephen Farrugia s export offences are: offences each under Rule 124(1) from the first group of charges concerning 96 greyhounds exported predominantly to Macau; 2. two offences each under Rule 124(1) from the second group of charges for two shipments of greyhounds to China on 17 May 2013 (40 greyhounds) and 20 November 2015 (30 greyhounds). 92. Mark and Stephen Farrugia s misconduct offences are: 1. one offence each under Rule 86(o) from the first group of charges; and 2. one offence each under Rule 86(o) from the second group of charges. 93. Mark and Stephen Farrugia s conduct prejudicial offences are: 1. one offence each under Rule 86(q) from the first group of charges; and 2. one offence each under Rule 86(q) from the second group of charges. 11

12 94. Mark and Stephen Farrugia s registration offences are: 1. sixty-six offences each under Rule 117(2); and 2. sixty-six offences each under Rule 117(1). 95. For the export offences, I fine each of Mark and Stephen Farrugia the sum of $22,000 and disqualify them for a period of 5 years from the date of this decision. Taking into account the substantial mitigating factors outlined in paragraph 84 above, I suspend 2.5 years of this disqualification for a period of 5 years pending any further breaches of Rule 124(1) in the next 5 years. Although the Farrugias made an estimated $50,000 profit from the exports between them, I consider this likely to be the maximum applicable fine under section 21(1)(f) of the Act although the terms of the section are ambiguous. There is nothing to suggest financial hardship of the Farrugias. 96. For the conduct prejudicial offences, I disqualify each of Mark and Stephen Farrugia for a period of 5 years from the date of this decision. Taking into account the substantial mitigating factors outlined in paragraph 84 above, I suspend 2.5 years of this disqualification for a period of 5 years pending any further breaches of Rule 86(o) in the next 5 years. The conduct underlying this charge is essentially the same conduct giving rise to the breaches of rule 124(1) and I make this period of disqualification wholly concurrent with the period of disqualification imposed above. 97. For the misconduct offences, I disqualify each of Mark and Stephen Farrugia for a period of 5 years from the date of this decision. Taking into account the substantial mitigating factors outlined in paragraph 84 above, I suspend 2.5 years of this disqualification for a period of 5 years pending any further breaches of Rule 86(q) in the next 5 years. The conduct underlying this charge is essentially the same conduct giving rise to the breaches of Rule 124(1) and I make this period of disqualification wholly concurrent with the period of disqualification imposed above. 98. For the registration offences, I fine Mark and Stephen Farrugia the sum of $6,600 each. This equates to $50 for each form that should have been lodged. The lodgement of these forms is essential to enable proper supervision of the industry by the regulator. These fines are concurrent with and not additional to the fines imposed above because I consider that section 21(1)(f) of the Act does not authorise me with sufficient clarity to impose a collective fine in excess of 200 penalty units ($22,000). 99. For the 86(n) offence, I disqualify Donna Farrugia for a period of 2.5 years from the date of this decision. Taking into account mitigating factors 3 6 in paragraph 84 above and the value of the admissions made by Donna Farrugia at an early stage of this Inquiry, I suspend one year of this disqualification for a period of 2.5 years pending any further breaches of Rule 124(1) or Rule 86(n) in relation to knowingly aiding, abetting, counselling or procuring any breaches of Rule 124(1) of the Rules Mark, Stephen and Donna Farrugia have been notified of their appeal rights and provisions relating to payment of the fines. The periods of disqualification outlined above commence 14 days from the date of this decision. Mr Adrian Anderson Steward 12