Non Raceday Inquiry – RIU v R Stam 2 August 2011 – Decision 5 August 2011
ID: JCA10658
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR RONALD STAM
Defendant
Judicial Committee: Mr T Utikere (Chairman), Mr T Castles (Committee Member)
Appearing: Mr RLH Neal (for the informant) – Mr R Stam (as the defendant)
Registrar: Mr N Goodwin
Venue: Stewards Lounge, Awapuni Racecourse
Date of Hearing: 2 August 2011
Date of Decision: 5 August 2011
___________________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
___________________________________________________________________________
[1] Mr Stam appears before this Judicial Committee on the following charge:
THAT on Saturday 16th July at Trentham Racecourse being a rider who, having been requested by a Stipendiary Steward to supply a sample of his urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 656 (3) of the New Zealand Rules of Racing AND THAT you are thereby liable to the penalty or penalties which may be imposed upon your pursuant to the provisions of Rule 803 of the said Rules.
[2] The rule reads as follows:
Rule 656 (3) - “A rider who, having been required by a Stipendiary Steward or Investigator to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) in accordance with this Rule must not have blood, breath, urine, saliva or sweat (whichever is the subject of the applicable sample) which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.”
[3] Mr Stam admitted the charge and acknowledged that he had received a copy of Rule 656 (3) and that he understood the rule. He also accepted that Cannabis was a controlled drug as defined in the Misuse of Drugs Act 1975. We thus find the charge proved.
FACTS:
[4] Mr Neal provided a signed authority from the Racing Integrity Unit to proceed with the charge against Mr Stam and placed the following Summary of Facts before this committee:
On Saturday 16th July 2011 RIU officials conducted routine drug testing during the currency of the Wellington Racing Club’s race meeting.
The defendant Ronald Stam was one of the people selected to be tested. Mr Stam was approached by Stipendiary Steward Ross Neal shortly after he arrived on course and served with the appropriate notice and directed to attend the testing station prior to leaving the course on that day.
The defendant duly attended the testing station as requested and supplied a sample of his urine at 5.22pm. This sample was given the ID number 497916.
The sample along with all other samples were delivered to the ESR Laboratory in Porirua by Steward Neal on Monday 18th July 2011 at 8.00am
On Thursday 21st July 2011 NZTR received written notification from the Institute of Environmental Scientific and Research Ltd (ESR) that Mr Stam’s urine sample (ID number 497916) had tested not negative to the presence of Cannabis. This was in effect a positive result. (ESR Urine Drug Test Report attached)
On the same day (Thursday 21st July 2011) the Defendant was served with a stand down notice pursuant to Rule 657 (1) (b) of the Rules of Racing at the Hawke’s Bay racing Clubs race meeting. The effect of this being that as from the time of service and until the conclusion of the hearing of the matter the defendants licence was effectively withdrawn. Due to the results of the testing only being received by the RIU on the morning of the 21st July 2011 the defendant was required to be stood down from his ride at the race meeting that day. The defendant acknowledged he understood and accepted the situation without question.
Later on the 21st of July the Defendant was interviewed and an explanation sought as to how cannabis could have been in his system. The Defendant readily admitted that he had imbibed in some cannabis the weekend prior to the 16th of July and this must have been the cause of the adverse result.
At the conclusion of the interview the Defendant was advised that he would be charged and he would be contacted and formally charged in the coming days.
During the process of testing and subsequent interview the Defendant was totally Co-operative and provided open and honest answers to all enquiries.
[5] Mr Neal furnished this committee with a copy of the Institute of Environmental Science and Research Limited certificate, identifying a “Not Negative” result for Cannabinoids, in effect a positive test, with the level being relatively low at 41 ng/mL.
[6] Mr Neal also tabled a copy of the stand down notice served upon Mr Stam on 21 July 2011. Mr Stam did have a declared riding engagement on that date, for which he had to be replaced by another rider.
[7] Mr Stam stated that he did not dispute any of the matters raised in the summary of facts and did not have anything he wished to add.
PENALTY SUBMISSIONS BY INFORMANT:
[8] Mr Neal submitted the following with regard to penalty:
[9] NZTR commenced drug testing riders in 1995 and since this time there has been growing awareness that an absolute obligation rests with those riding horses to present themselves free of the influence of any drug or drugs at all times
[10] NZTR has an illicit drugs free policy in terms of all riders whether they are riding in races, trials or track work. Racing clubs who operate training facilities are also mindful that they to have an obligation to provide a safe working environment.
[11] These policies relating to drugs have been well gazetted and riders have been made fully aware of the potential consequences should they imbibe in prohibited substances.
[12] In fact drug testing of riders is now an important aspect of the New Zealand thoroughbred racing industry, with riders being regularly tested at both race meetings and at trackwork alike.
[13] The reason for testing riders is primarily twofold; firstly for the reasons of maintaining the integrity of the industry and secondly and importantly it is conducted for reasons of maintaining health and safety in the workplace.
[14] In addition to the workplace and integrity aspects it is important that riders do not unduly put at risk horses of value and worth by way of them being under the influence of an illicit substance, and the fact that a rider has a banned substance present in their system represents a risk to not only themselves but also others.
[15] With respect to historical penalties imposed against riders for breaches of the drug rules these are varied and, in most cases, dependant upon the ‘class’ of drug detected. Simply put; riders who have been found to have in their systems drugs classified as ‘Class A’ have attracted significantly harsher penalties than those riders who have tested positive to a ‘Class C’ drug.
[16] As evidenced from the attached schedule of historical penalties breaches of the drug rules demonstrate some divergence in the actual penalties imposed. This being because of the substance detected and also because of the circumstances of the individual offender.
[17] With respect to this offence the substance detected- Cannabis is classified within group known as Class ‘C’ drugs. Therefore the penalty being sought is not as significant as it would have been had the drug been classified Class ‘A’
[18] However notwithstanding this Class ‘C’ classification the RIU considers that any prohibited drug found in a riders system to be inherently detrimental to racing and accordingly the penalty imposed must be reflective of the seriousness and the concern that this raises.
[19] Riders who present themselves to ride either in trackwork or at race meetings are well aware of the duties that rest with them with respect to ensuring that they do so drug free. On this occasion the defendant has not complied with this requirement and commensurately he finds himself before you today. This being the second occasion within the past three years that he has been found to have cannabis in his system on a race day.
[20] The previous occasion being in June 2009 where the offending attracted a period of disqualification of four (4) months. This is considered a significant aggravating factor.
[21] With regard to this offence the Defendant has stated that he had imbibed in cannabis approximately one week prior to being tested while socially engaged. He now regrets this stupidity.
[22] With respect to penalty - while it is acknowledged that while this is the Defendants second offence relating to cannabis within three years it is nevertheless submitted that a disqualification not necessarily be imposed, but rather it is the Informants position that a lengthy period of suspension is a more appropriate penalty.
[23] The Defendant is a relatively young man with a family who depends upon racing for his income. His primary income being from riding trackwork at the Foxton track, while a secondary source of revenue for him is race day riding, an activity he has been focused on improving over recent times. The imposition of a period of disqualification would remove all his income streams and leave him, and his family, in dire financial straights.
[24] Expanding on the reasons as to why a suspension is appropriate the is referred to the recent case of ‘B’ where the Chairman in his written decision stated “The removal of a significant portion of her livelihood by disqualification is a step we believe that we should only take if no other alternative and effective penalty is available to us” In this case ‘B’ was found to have assaulted another trainer with an object and while on the face of it appeared the offending should have attracted a period of exclusion by way of disqualification the Committee saw fit to substitute this with a period of suspension.
[25] The relevance between ‘B’ and the case before you today being that the effect of a period of disqualification being imposed upon the Defendant would be manifestly excessive given the circumstances.
[26] It is acknowledged that the offence committed by the Defendant is a serious one and deserving of significant sanction; however it also needs to be placed in the scale with regard to drug related breaches.
[27] Cannabis is a Class ‘C’ drug (often referred to as a ‘soft’ drug) whereas substances such as methamphetamine, cocaine, heroin etc are Class ‘A’ (known as ‘hard drugs) and the penalties for these should be divergent. Class ‘A’ drugs are considered by the greater community as being abhorrent and repugnant whereas, over time, the Class ‘C’ drugs have gained some type of public acceptance and are not seen in anywhere near in an unfavourable light such as the harder ones.
[28] Penalties imposed by other quasi-judicial bodies over recent years clearly enunciate the difference between the various drugs and drug types detected and accordingly impose divergent penalties. Indeed the courts now take a far more liberal view to cannabis offending as previously was the case yet have ratcheted up penalties for the harder drugs.
[29] With regard to this the Committee is referred to Section 8 of the Sentencing Act 2002 which states: In sentencing an offender, the court must take into account of the principles of sentencing. These are:
(i) It must impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and order
(ii) where a particular circumstance of the offender means that a sentence, or any other means of dealing with the offender, that would otherwise be appropriate is, in the particular instance, disproportionately severe.
[30] With respect to these it must be mentioned and recognised that historically disproportionate penalties have been imposed upon those who have breached the provisions of both this rule: Rule 656 (3) and its predecessor Rule 528. More particularly there has existed a significant divergence in those penalties levied against track riders vs. jockeys (race riders). The track rider being far more advantaged when compared to the jockey. An example being - A track rider, for a cannabis related offence, has received in the vicinity of a one to two month suspension of the track riding component of their licence whereas jockeys have, for the same offence, had imposed upon them a disqualification and which has been of a longer duration.
[31] And while it is recognised that jockeys have a higher profile than a track rider the fact clearly remains that the real effect of a suspension vs. a disqualification is considerable.
[32] It is important also to note that over recent times other racing jurisdictions have lessened the penalties for cannabis and accordingly it is respectfully submitted this be applied in the case before you. An example being NSW where first offences for cannabis alone attract a three months suspension. Subsequent offences attracting greater periods of suspension.
[33] Finally when referring to the Penalty Guide published by the JCA with respect to starting points for offences the matter before you today is not provided for.
[34] It is submitted that after considering all matters it is the Informants position that the Defendants licence to ride in races be suspended for a period not less than eight months and given that as this is his second offence he be instructed to undertake a drug rehabilitation programme prior to him being re-licensed to ride on race day.
[35] In response to a question from the Chairman, Mr Neal submitted that there was no similar precedent for a jockey who was appearing on a second charge under this rule as no comparisons could be made with the penalty imposed in the ‘A’ case due to Mr ‘A’ being a trackwork rider and the ‘A’ penalty encompassing a range of offending, distinctly different to the issue currently before this committee.
[36] It was also acknowledged that Mr Stam’s previous offending under this rule was in 2009, for which the defendant received a period of disqualification of four months. Mr Neal submitted that the policy of NZTR at that time was to seek disqualification for all persons who were licensed as jockeys to ride in races, regardless of the frequency of riding.
[37] Mr Neal stated that such a position was now viewed to be manifestly unfair as a person who holds a track riders licence and who rides a lot of trackwork would be suspended from riding, but still able to earn an income by working in the stables; whereas a jockey who may ride on an infrequent basis would attract a significantly harsher penalty in comparison. It was also submitted that at the time there was a perception of there being a shortage of trackwork riders, and that there is now an attempt by the RIU to remedy this issue by not lessening the significance of the offending, but making it more relative to the circumstances of the offending attracting an appropriate penalty.
[38] The RIU also accepted that they are making a greater distinction between Class A and Class C drugs in an attempt to rectify an imbalance in the relativity between the classification of drugs.
[39] To conclude the RIU’s penalty submissions, the informant presented the committee with a copy of the defendant’s record which, apart from the previous period of disqualification, identified minor race day matters and no other serious offences.
[40] Mr Neal also submitted that the RIU were not seeking any costs in this matter.
PENALTY SUBMISSIONS BY DEFENDANT:
[41] Mr Stam addressed the committee on the issue of penalty, submitting a preference for a period of suspension rather than disqualification be imposed.
[42] He believed that a period of disqualification would cause undue hardship as he has a young child to support. He also would suffer financially as he would not be able to earn an income via trackwork which would affect his ability to meet financial obligations he has to a house he purchased when he came out of his apprenticeship.
[43] The defendant also indicated that when he was previously disqualified, he attempted to obtain alternative employment which proved fruitless. A penalty that would enable him to continue to work within the racing industry would be of financial benefit to him.
[44] He submitted that he had been race-riding for 11 years after receiving his licence in 2000. He also has regular commitments as a trackwork rider.
[45] The chairman asked Mr Stam to make specific submissions on why, in the defendant’s view, the committee should not give serious consideration to a period of disqualification, given that this is not the first time he has been charged under the rule.
[46] Mr Stam submitted that the previous time he was charged under this rule he neglected to attend the hearing. It was his belief that he had a drug problem and that a period of suspension, coupled with a requirement for him to attend drug counselling would be beneficial for him.
[47] Mr Stam stated that he was not a regular user of cannabis, but that it was not uncommon for him to have a smoke during the weekend. He was aware that cannabis could be detected within the body for a significant period of time after it had been taken, but only identified the seriousness of the situation he was now in after being tested and subsequently caught.
[48] The defendant agreed with the RIU’s submission of a period of suspension of no less than eight months as this would allow him to continue to work and earn an income. He stated that he was not in a position to pay a fine as he had limited discretionary income.
[49] It was also submitted that Mr Stam was always “brutally honest” in all his dealings with the stewards, and that he rarely causes concern on raceday. Mr Stam also stated that he had nothing further to add and believed he had received a fair hearing.
DECISION:
In coming to our decision we have carefully considered all of the submissions placed before us.
[50] In mitigation, the committee notes Mr Stam’s co-operation with the Racing Integrity Unit throughout this entire process. His conduct within the context of the hearing was of an exemplary nature. We have also considered the submission that he appears to be brutally honest with any dealings he has on raceday and any associated matters, alongside his early admittance of this breach.
[51] This committee notes that the defendant is a race day rider of significant experience having held a licence since 2000. He also undertakes trackwork riding at the Foxton racecourse. We also note that his current situation includes supporting a young child and that he also has financial pressures; and the committee needs to take cognisance of these matters.
[52] Nonetheless, it is his responsibility to ensure that he presents himself for riding on race day, and in trackwork situations, in an entirely drug-free state. Mr Stam must learn that drugs and racing do not mix.
[53] There has been a concerted effort by the RIU over the last 12 months to eliminate drugs from the racing industry, and that is why we have not had a charge of this nature for quite some time. While cannabis is classified as a Class C drug, it still has the ability to impede a person’s actions, or inactions, within a racing situation.
[54] The committee had entertained the prospect of a period of disqualification, or a period of suspension. It is our view that while the level of cannabis in Mr Stam’s system may appear to be at odds with someone who would regularly use cannabis, he should nonetheless be defined as a habitual user of cannabis. This is patently clear to us via his own admission of using cannabis every weekend, and his acknowledgement to this committee that he has a drug problem. Therefore in our view it would be imperative that Mr Stam consider undertaking a drug rehabilitation programme before commencing race-riding in the future.
[55] There remains an on-going need to maintain integrity and public confidence in racing and to this end the penalty that we impose must reflect the view that offending in this way will not be tolerated. The penalty must also deter other persons in the racing industry from committing similar offences, and at the same time attempt to prevent Mr Stam from re-offending.
[56] We are satisfied that while no relevant precedent for the case before us exists, we must impose a penalty that encapsulates the committee’s concern that this is Mr Stam’s second offence of this nature; his previous resulting in a period of disqualification. The committee considers this a significant aggravating feature of Mr Stam’s offending. He has a responsibility to his fellow riders, to owners, the betting public and indeed himself, and therefore this issue cannot be treated lightly.
[57] However, the committee feels that it is appropriate to adopt the view express in the case of ‘B’, as submitted by the informant, as the effect of imposing a period of disqualification would be manifestly excessive given the defendant’s current circumstances.
Penalty:
[58] In view of the fact Mr Stam’s licence was withdrawn on the 21st of July 2011, we formally reinstate his licence as from the 2nd August 2011.
[59] Taking all matters into account we are satisfied that an appropriate penalty is one of suspension. Mr Stam will be suspended for a period of nine (9) months that will take effect from the date of the issue of the licence withdrawal notice, the 21st of July 2011 and is to end at midnight on the 21st of April 2012.
[60] The committee strongly recommends that Mr Stam undertake a recognised drug rehabilitation course, before he commences race-riding in the future.
COSTS
[61] As this matter was heard on a non-race day, the defendant is ordered to pay costs to the Judicial Control Authority in the amount of $150.00.
Mr Tangi Utikere Mr Tom Castles
Chairman Commitee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 05/08/2011
Publish Date: 05/08/2011
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 063d4007c140864654ffb9547eac4365
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penaltyrequired:
decisiondate: 05/08/2011
hearing_title: Non Raceday Inquiry - RIU v R Stam 2 August 2011 - Decision 5 August 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR RONALD STAM
Defendant
Judicial Committee: Mr T Utikere (Chairman), Mr T Castles (Committee Member)
Appearing: Mr RLH Neal (for the informant) – Mr R Stam (as the defendant)
Registrar: Mr N Goodwin
Venue: Stewards Lounge, Awapuni Racecourse
Date of Hearing: 2 August 2011
Date of Decision: 5 August 2011
___________________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
___________________________________________________________________________
[1] Mr Stam appears before this Judicial Committee on the following charge:
THAT on Saturday 16th July at Trentham Racecourse being a rider who, having been requested by a Stipendiary Steward to supply a sample of his urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 656 (3) of the New Zealand Rules of Racing AND THAT you are thereby liable to the penalty or penalties which may be imposed upon your pursuant to the provisions of Rule 803 of the said Rules.
[2] The rule reads as follows:
Rule 656 (3) - “A rider who, having been required by a Stipendiary Steward or Investigator to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) in accordance with this Rule must not have blood, breath, urine, saliva or sweat (whichever is the subject of the applicable sample) which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance or diuretic and/or its metabolites, artifacts or isomers.”
[3] Mr Stam admitted the charge and acknowledged that he had received a copy of Rule 656 (3) and that he understood the rule. He also accepted that Cannabis was a controlled drug as defined in the Misuse of Drugs Act 1975. We thus find the charge proved.
FACTS:
[4] Mr Neal provided a signed authority from the Racing Integrity Unit to proceed with the charge against Mr Stam and placed the following Summary of Facts before this committee:
On Saturday 16th July 2011 RIU officials conducted routine drug testing during the currency of the Wellington Racing Club’s race meeting.
The defendant Ronald Stam was one of the people selected to be tested. Mr Stam was approached by Stipendiary Steward Ross Neal shortly after he arrived on course and served with the appropriate notice and directed to attend the testing station prior to leaving the course on that day.
The defendant duly attended the testing station as requested and supplied a sample of his urine at 5.22pm. This sample was given the ID number 497916.
The sample along with all other samples were delivered to the ESR Laboratory in Porirua by Steward Neal on Monday 18th July 2011 at 8.00am
On Thursday 21st July 2011 NZTR received written notification from the Institute of Environmental Scientific and Research Ltd (ESR) that Mr Stam’s urine sample (ID number 497916) had tested not negative to the presence of Cannabis. This was in effect a positive result. (ESR Urine Drug Test Report attached)
On the same day (Thursday 21st July 2011) the Defendant was served with a stand down notice pursuant to Rule 657 (1) (b) of the Rules of Racing at the Hawke’s Bay racing Clubs race meeting. The effect of this being that as from the time of service and until the conclusion of the hearing of the matter the defendants licence was effectively withdrawn. Due to the results of the testing only being received by the RIU on the morning of the 21st July 2011 the defendant was required to be stood down from his ride at the race meeting that day. The defendant acknowledged he understood and accepted the situation without question.
Later on the 21st of July the Defendant was interviewed and an explanation sought as to how cannabis could have been in his system. The Defendant readily admitted that he had imbibed in some cannabis the weekend prior to the 16th of July and this must have been the cause of the adverse result.
At the conclusion of the interview the Defendant was advised that he would be charged and he would be contacted and formally charged in the coming days.
During the process of testing and subsequent interview the Defendant was totally Co-operative and provided open and honest answers to all enquiries.
[5] Mr Neal furnished this committee with a copy of the Institute of Environmental Science and Research Limited certificate, identifying a “Not Negative” result for Cannabinoids, in effect a positive test, with the level being relatively low at 41 ng/mL.
[6] Mr Neal also tabled a copy of the stand down notice served upon Mr Stam on 21 July 2011. Mr Stam did have a declared riding engagement on that date, for which he had to be replaced by another rider.
[7] Mr Stam stated that he did not dispute any of the matters raised in the summary of facts and did not have anything he wished to add.
PENALTY SUBMISSIONS BY INFORMANT:
[8] Mr Neal submitted the following with regard to penalty:
[9] NZTR commenced drug testing riders in 1995 and since this time there has been growing awareness that an absolute obligation rests with those riding horses to present themselves free of the influence of any drug or drugs at all times
[10] NZTR has an illicit drugs free policy in terms of all riders whether they are riding in races, trials or track work. Racing clubs who operate training facilities are also mindful that they to have an obligation to provide a safe working environment.
[11] These policies relating to drugs have been well gazetted and riders have been made fully aware of the potential consequences should they imbibe in prohibited substances.
[12] In fact drug testing of riders is now an important aspect of the New Zealand thoroughbred racing industry, with riders being regularly tested at both race meetings and at trackwork alike.
[13] The reason for testing riders is primarily twofold; firstly for the reasons of maintaining the integrity of the industry and secondly and importantly it is conducted for reasons of maintaining health and safety in the workplace.
[14] In addition to the workplace and integrity aspects it is important that riders do not unduly put at risk horses of value and worth by way of them being under the influence of an illicit substance, and the fact that a rider has a banned substance present in their system represents a risk to not only themselves but also others.
[15] With respect to historical penalties imposed against riders for breaches of the drug rules these are varied and, in most cases, dependant upon the ‘class’ of drug detected. Simply put; riders who have been found to have in their systems drugs classified as ‘Class A’ have attracted significantly harsher penalties than those riders who have tested positive to a ‘Class C’ drug.
[16] As evidenced from the attached schedule of historical penalties breaches of the drug rules demonstrate some divergence in the actual penalties imposed. This being because of the substance detected and also because of the circumstances of the individual offender.
[17] With respect to this offence the substance detected- Cannabis is classified within group known as Class ‘C’ drugs. Therefore the penalty being sought is not as significant as it would have been had the drug been classified Class ‘A’
[18] However notwithstanding this Class ‘C’ classification the RIU considers that any prohibited drug found in a riders system to be inherently detrimental to racing and accordingly the penalty imposed must be reflective of the seriousness and the concern that this raises.
[19] Riders who present themselves to ride either in trackwork or at race meetings are well aware of the duties that rest with them with respect to ensuring that they do so drug free. On this occasion the defendant has not complied with this requirement and commensurately he finds himself before you today. This being the second occasion within the past three years that he has been found to have cannabis in his system on a race day.
[20] The previous occasion being in June 2009 where the offending attracted a period of disqualification of four (4) months. This is considered a significant aggravating factor.
[21] With regard to this offence the Defendant has stated that he had imbibed in cannabis approximately one week prior to being tested while socially engaged. He now regrets this stupidity.
[22] With respect to penalty - while it is acknowledged that while this is the Defendants second offence relating to cannabis within three years it is nevertheless submitted that a disqualification not necessarily be imposed, but rather it is the Informants position that a lengthy period of suspension is a more appropriate penalty.
[23] The Defendant is a relatively young man with a family who depends upon racing for his income. His primary income being from riding trackwork at the Foxton track, while a secondary source of revenue for him is race day riding, an activity he has been focused on improving over recent times. The imposition of a period of disqualification would remove all his income streams and leave him, and his family, in dire financial straights.
[24] Expanding on the reasons as to why a suspension is appropriate the is referred to the recent case of ‘B’ where the Chairman in his written decision stated “The removal of a significant portion of her livelihood by disqualification is a step we believe that we should only take if no other alternative and effective penalty is available to us” In this case ‘B’ was found to have assaulted another trainer with an object and while on the face of it appeared the offending should have attracted a period of exclusion by way of disqualification the Committee saw fit to substitute this with a period of suspension.
[25] The relevance between ‘B’ and the case before you today being that the effect of a period of disqualification being imposed upon the Defendant would be manifestly excessive given the circumstances.
[26] It is acknowledged that the offence committed by the Defendant is a serious one and deserving of significant sanction; however it also needs to be placed in the scale with regard to drug related breaches.
[27] Cannabis is a Class ‘C’ drug (often referred to as a ‘soft’ drug) whereas substances such as methamphetamine, cocaine, heroin etc are Class ‘A’ (known as ‘hard drugs) and the penalties for these should be divergent. Class ‘A’ drugs are considered by the greater community as being abhorrent and repugnant whereas, over time, the Class ‘C’ drugs have gained some type of public acceptance and are not seen in anywhere near in an unfavourable light such as the harder ones.
[28] Penalties imposed by other quasi-judicial bodies over recent years clearly enunciate the difference between the various drugs and drug types detected and accordingly impose divergent penalties. Indeed the courts now take a far more liberal view to cannabis offending as previously was the case yet have ratcheted up penalties for the harder drugs.
[29] With regard to this the Committee is referred to Section 8 of the Sentencing Act 2002 which states: In sentencing an offender, the court must take into account of the principles of sentencing. These are:
(i) It must impose the least restrictive outcome that is appropriate in the circumstances in accordance with the hierarchy of sentences and order
(ii) where a particular circumstance of the offender means that a sentence, or any other means of dealing with the offender, that would otherwise be appropriate is, in the particular instance, disproportionately severe.
[30] With respect to these it must be mentioned and recognised that historically disproportionate penalties have been imposed upon those who have breached the provisions of both this rule: Rule 656 (3) and its predecessor Rule 528. More particularly there has existed a significant divergence in those penalties levied against track riders vs. jockeys (race riders). The track rider being far more advantaged when compared to the jockey. An example being - A track rider, for a cannabis related offence, has received in the vicinity of a one to two month suspension of the track riding component of their licence whereas jockeys have, for the same offence, had imposed upon them a disqualification and which has been of a longer duration.
[31] And while it is recognised that jockeys have a higher profile than a track rider the fact clearly remains that the real effect of a suspension vs. a disqualification is considerable.
[32] It is important also to note that over recent times other racing jurisdictions have lessened the penalties for cannabis and accordingly it is respectfully submitted this be applied in the case before you. An example being NSW where first offences for cannabis alone attract a three months suspension. Subsequent offences attracting greater periods of suspension.
[33] Finally when referring to the Penalty Guide published by the JCA with respect to starting points for offences the matter before you today is not provided for.
[34] It is submitted that after considering all matters it is the Informants position that the Defendants licence to ride in races be suspended for a period not less than eight months and given that as this is his second offence he be instructed to undertake a drug rehabilitation programme prior to him being re-licensed to ride on race day.
[35] In response to a question from the Chairman, Mr Neal submitted that there was no similar precedent for a jockey who was appearing on a second charge under this rule as no comparisons could be made with the penalty imposed in the ‘A’ case due to Mr ‘A’ being a trackwork rider and the ‘A’ penalty encompassing a range of offending, distinctly different to the issue currently before this committee.
[36] It was also acknowledged that Mr Stam’s previous offending under this rule was in 2009, for which the defendant received a period of disqualification of four months. Mr Neal submitted that the policy of NZTR at that time was to seek disqualification for all persons who were licensed as jockeys to ride in races, regardless of the frequency of riding.
[37] Mr Neal stated that such a position was now viewed to be manifestly unfair as a person who holds a track riders licence and who rides a lot of trackwork would be suspended from riding, but still able to earn an income by working in the stables; whereas a jockey who may ride on an infrequent basis would attract a significantly harsher penalty in comparison. It was also submitted that at the time there was a perception of there being a shortage of trackwork riders, and that there is now an attempt by the RIU to remedy this issue by not lessening the significance of the offending, but making it more relative to the circumstances of the offending attracting an appropriate penalty.
[38] The RIU also accepted that they are making a greater distinction between Class A and Class C drugs in an attempt to rectify an imbalance in the relativity between the classification of drugs.
[39] To conclude the RIU’s penalty submissions, the informant presented the committee with a copy of the defendant’s record which, apart from the previous period of disqualification, identified minor race day matters and no other serious offences.
[40] Mr Neal also submitted that the RIU were not seeking any costs in this matter.
PENALTY SUBMISSIONS BY DEFENDANT:
[41] Mr Stam addressed the committee on the issue of penalty, submitting a preference for a period of suspension rather than disqualification be imposed.
[42] He believed that a period of disqualification would cause undue hardship as he has a young child to support. He also would suffer financially as he would not be able to earn an income via trackwork which would affect his ability to meet financial obligations he has to a house he purchased when he came out of his apprenticeship.
[43] The defendant also indicated that when he was previously disqualified, he attempted to obtain alternative employment which proved fruitless. A penalty that would enable him to continue to work within the racing industry would be of financial benefit to him.
[44] He submitted that he had been race-riding for 11 years after receiving his licence in 2000. He also has regular commitments as a trackwork rider.
[45] The chairman asked Mr Stam to make specific submissions on why, in the defendant’s view, the committee should not give serious consideration to a period of disqualification, given that this is not the first time he has been charged under the rule.
[46] Mr Stam submitted that the previous time he was charged under this rule he neglected to attend the hearing. It was his belief that he had a drug problem and that a period of suspension, coupled with a requirement for him to attend drug counselling would be beneficial for him.
[47] Mr Stam stated that he was not a regular user of cannabis, but that it was not uncommon for him to have a smoke during the weekend. He was aware that cannabis could be detected within the body for a significant period of time after it had been taken, but only identified the seriousness of the situation he was now in after being tested and subsequently caught.
[48] The defendant agreed with the RIU’s submission of a period of suspension of no less than eight months as this would allow him to continue to work and earn an income. He stated that he was not in a position to pay a fine as he had limited discretionary income.
[49] It was also submitted that Mr Stam was always “brutally honest” in all his dealings with the stewards, and that he rarely causes concern on raceday. Mr Stam also stated that he had nothing further to add and believed he had received a fair hearing.
DECISION:
In coming to our decision we have carefully considered all of the submissions placed before us.
[50] In mitigation, the committee notes Mr Stam’s co-operation with the Racing Integrity Unit throughout this entire process. His conduct within the context of the hearing was of an exemplary nature. We have also considered the submission that he appears to be brutally honest with any dealings he has on raceday and any associated matters, alongside his early admittance of this breach.
[51] This committee notes that the defendant is a race day rider of significant experience having held a licence since 2000. He also undertakes trackwork riding at the Foxton racecourse. We also note that his current situation includes supporting a young child and that he also has financial pressures; and the committee needs to take cognisance of these matters.
[52] Nonetheless, it is his responsibility to ensure that he presents himself for riding on race day, and in trackwork situations, in an entirely drug-free state. Mr Stam must learn that drugs and racing do not mix.
[53] There has been a concerted effort by the RIU over the last 12 months to eliminate drugs from the racing industry, and that is why we have not had a charge of this nature for quite some time. While cannabis is classified as a Class C drug, it still has the ability to impede a person’s actions, or inactions, within a racing situation.
[54] The committee had entertained the prospect of a period of disqualification, or a period of suspension. It is our view that while the level of cannabis in Mr Stam’s system may appear to be at odds with someone who would regularly use cannabis, he should nonetheless be defined as a habitual user of cannabis. This is patently clear to us via his own admission of using cannabis every weekend, and his acknowledgement to this committee that he has a drug problem. Therefore in our view it would be imperative that Mr Stam consider undertaking a drug rehabilitation programme before commencing race-riding in the future.
[55] There remains an on-going need to maintain integrity and public confidence in racing and to this end the penalty that we impose must reflect the view that offending in this way will not be tolerated. The penalty must also deter other persons in the racing industry from committing similar offences, and at the same time attempt to prevent Mr Stam from re-offending.
[56] We are satisfied that while no relevant precedent for the case before us exists, we must impose a penalty that encapsulates the committee’s concern that this is Mr Stam’s second offence of this nature; his previous resulting in a period of disqualification. The committee considers this a significant aggravating feature of Mr Stam’s offending. He has a responsibility to his fellow riders, to owners, the betting public and indeed himself, and therefore this issue cannot be treated lightly.
[57] However, the committee feels that it is appropriate to adopt the view express in the case of ‘B’, as submitted by the informant, as the effect of imposing a period of disqualification would be manifestly excessive given the defendant’s current circumstances.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
[58] In view of the fact Mr Stam’s licence was withdrawn on the 21st of July 2011, we formally reinstate his licence as from the 2nd August 2011.
[59] Taking all matters into account we are satisfied that an appropriate penalty is one of suspension. Mr Stam will be suspended for a period of nine (9) months that will take effect from the date of the issue of the licence withdrawal notice, the 21st of July 2011 and is to end at midnight on the 21st of April 2012.
[60] The committee strongly recommends that Mr Stam undertake a recognised drug rehabilitation course, before he commences race-riding in the future.
COSTS
[61] As this matter was heard on a non-race day, the defendant is ordered to pay costs to the Judicial Control Authority in the amount of $150.00.
Mr Tangi Utikere Mr Tom Castles
Chairman Commitee Member
hearing_type: Non-race day
Rules: 656(3)
Informant: Mr R Neal - Representing the Informant
JockeysandTrainer:
Otherperson:
PersonPresent: Mr N Goodwin - Registrar
Respondent: Mr R Stam - Licensed Jockey
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