Non Raceday Inquiry RIU v G Robb – Decision dated 23 March 2014

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decisiondate: 21/03/2014

hearing_title: Non Raceday Inquiry RIU v G Robb - Decision dated 23 March 2014

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NON RACEDAY INQUIRY

RIU v Mr G Robb

RULES: 226 (2) (d), 313 (6) and 512 (2) (a); and

RULE 1003 (1) – Penalty provision.

Information Number: A3702

Mr R Carmichael - RIU Racing Investigator

Informant

Mr G Robb - Open Horseman

Respondent

Held: Friday, 21 March 2014 at Alexandra Park, Auckland

Judicial Committee: A Dooley, Chairman – G Jones, Committee Member

Present: Mr R Carmichael – Racing Investigator

Decision: Dated 23 March 2014

DECISION OF JUDICIAL COMMITTEE

Charge:

The Informant, Mr Carmichael alleged that on 24 of December 2013, at Cambridge Raceway, Mr Robb (Open Horseman), committed a breach of Rule 512 (2)(a) of the New Zealand Rules of Harness Racing in that, having been required in writing by Mr Carmichael, a duly appointed Racing Investigator, to supply a sample in accordance with Rules 226 (2)(d) and 313 (6), refused to comply with that request; and that Mr Robb is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1003 (1) of the said Rules.

The Information was served personally by Mr Carmichael on Mr Robb on 28 December 2013. Mr Robb was advised that a time, date and place of hearing to be set by the JCA. Mr Robb endorsed the Information on 28 December that he admitted the breach and he consents to the matter being heard in his absence.

Mr Carmichael produced a letter from Mr Godber, General Manager of the RIU, authorising to lodge the charges pursuant to Rule 1103(4) (c).

Rules read:

The authority to require a Horseman to submit to routine drug testing is provided for in Rules 226 (2) (d) and 313 (6):

226 (2) (d):

Every Racecourse Inspector may and shall have the power to:-

(d) to require a horseman or junior horseman or the holder of a Horseman’s Licence to permit a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at such time and place as the Racecourse Inspector shall nominate.

313 (6):

(6) Every horseman shall permit a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at the time or place nominated by a Stipendiary Steward or Racecourse Inspector.

Any Horseman who fails to comply with a written request to submit for routine drug testing commits a breach of Rule 512 (2) (a) which provides as follows:

512 (2):

(2) Every horseman commits a breach of these Rules who, having been required under the Rules by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), at a time and place nominated by the Stipendiary Steward or Racecourse . Mr Inspector or Judicial Committee refuses or fails:

(a) to comply with such a request.

An agreed summary of facts presented as evidence by Mr Carmichael:

1. Mr G Robb was, at the date of this offence, an Open Horseman, licensed under the New Zealand Rules of Harness Racing.

2. On 24 December 2013 Mr Robb was officially notified as the driver of horses in races five and six at a race meeting conducted by Harness Racing Waikato at Cambridge Raceway. The official results of races five and six were produced.

3. At 2.35pm on 24 December 2013 Mr Robb was one of a number of drivers selected for routine drug testing. He was served with the appropriate Drug Testing Notification, prior to race five. A copy of that Notice was produced.

4. At the time that the Notice was served upon Mr Robb he said that it was his last day of driving and that he had resigned his position with his employer. He said that it was therefore a waste of time him taking the test. The Investigator pointed out to him that as he was driving at the meeting, he was still required to undergo a routine drug test.

5. Following the running of race six Mr Robb immediately left the stable area and headed towards the drivers’ room. He was again approached by the Investigator. Mr Robb said that as he was leaving the industry he would not be taking the drug test. At that time he returned the Notice which he had previously been handed by the Investigator.

6. Mr Robb has not been employed in the racing industry since 31 December 2013.

Evidence for the Defendant:

Prior to the hearing Mr Robb submitted a memorandum signed and dated 6 March 2014 where he indicated that he acknowledged and accepted the nature of the charge, the contents of the summary of facts. Mr Robb further advised that he admitted the breach and consented to the matter being heard in his absence.

Decision:

As Mr Robb admitted the breach we find the charge proved.

Submissions for Penalty by Mr Carmichael:

1. It is the policy of the Racing Integrity Unit, as authorised pursuant to the relevant Rules, that racing in New Zealand is drug free. This policy applies to both horses and drivers. The use of Controlled Drugs, as defined in the Misuse of Drugs Act, by drivers engaged in races or trials seriously impugns the integrity of racing, and, more particularly the safety of others. The purpose of the Rules in relation to testing is therefore quite plain.

2. In 1998 the racing codes put in place the Rules and Protocols to allow for the drug testing of Drivers. It therefore follows that the Racing Integrity Unit, on behalf of the Racing Codes, takes a serious view of any driver who fails a drug test or who, for whatever reason, fails or refuses to present for drug testing when properly required by a Racing Investigator or Stipendiary Steward.

3. In the present case Mr Robb was advised, on two occasions, that he was still required to undergo drug testing, notwithstanding the fact that it was to be his last day of driving at a race meeting.

4. A further aggravating factor in so far as penalty is concerned is that on 3 April 2009 Mr Robb appeared before a Judicial Committee on a similar charge. On that occasion he was fined $750 and suspended from driving for 1 month. A copy of that decision was produced.

5. Other than that offence, he has not appeared on any matter other than for driving related breaches.

6. Mr Robb is presently unemployed. He advises that he is not in a position to pay even a modest fine. He has consented to the matter being heard by a Judicial Committee prior to a race meeting, thus further minimising any costs to either him or the industry. He has further confirmed that he does not wish to attend this hearing, the relevant document was produced.

7. As this is the second offence of this nature committed by Mr Robb, it is the Informant’s submission that the matter should be viewed seriously, and that, in all of the circumstances, a period of disqualification is appropriate.

8. The Informant refers to the decision Harness Racing New Zealand v BL (24 April 2009). The facts in that matter are similar. It was the decision in that matter that Mr L was fined $750, with costs totally $500. He was also suspended from driving for a period of 6 months. A copy of that decision was produced.

9. Taking all matters into consideration, it is the Informant’s submission that Mr Robb should be disqualified for a period of 6 months.

Penalty Submissions by Defendant:

Mr Robb elected not to lodge any submissions on penalty.

Reasons for Penalty:

The Committee carefully considered all the submissions presented. The only mitigating factor is Mr Robb’s admission of the breach. This is Mr Robb’s second breach under this Rule in the past 4 years. We consider this a significant aggravating factor. We note that Mr Robb has voluntarily exited the racing industry and we are comforted to a degree that should we impose a period of disqualification, and if he seeks to re-enter the industry at some later time, Rule 313 (2) provides that in applying for a license Mr Robb would be required to undergo a full medical examination thus ensuring the integrity of racing provisions are maintained.

The Committee also took into account and verified penalties imposed for similar offences. However, it is noted that there are a limited number of similar breaches within Harness Racing and there are a number within Thoroughbred Racing in the main relating to trackwork riders.

The Committee considered Mr Robb’s ability to pay a fine and noted that his current circumstances prohibit this. We note also that Mr Robb is currently seeking employment outside the racing industry.

We note in the case of HRNZ v Mr L (2009) the Committee highlighted the need to distinguish between penalties involving a suspension versus disqualification when considering the impact of a penalty on a defendant whose future income is dependent on employment within the racing industry. We are satisfied that this case differs from the circumstances set out in HRNZ v Mr L in that Mr Carmichael has advised us that Mr Robb has no intention in the immediate future of seeking any employment within the racing industry but may after serving out his penalty reconsider his options. Accordingly for the purpose of determining penalty the Committee has treated Mr Robb as a non- industry employee.

The Committee understands that Mr Robb has not accepted driving engagements since the Information was served on him on 28 December 2013. The decision not to accept drives was triggered by Mr Robb’s desire to leave the industry as opposed to any official stand down.

The Committee considered Rule 1003 (1) which provides the following penalties:

(a) A fine not exceeding $5,000 and/or

(b) Suspension from holding or obtaining a license for a period not exceeding 12 months and/or

(c) Disqualification for a period not exceeding 12 months

In our opinion it is paramount the need to ensure Harness Racing is ‘drug free’ in order to maintain the integrity of the industry. There is also the issue of safety of horsemen and horses.

After taking into account all the above factors we consider an appropriate penalty is a 6 month disqualification.

Penalty:

Accordingly the Committee imposes a 6 month period of disqualification on Mr Robb commencing 21 March 2014 and concludes after racing on 21 September 2014.

On the question of costs, the RIU and JCA sought no costs as this hearing was held prior to a race meeting.

A Dooley                 G Jones

Chairman                Committee Member

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