Non Raceday Inquiry RIU v CW Johnson – Reserved Decision dated 7 June 2016 – Chair, Mr S Ching
ID: JCA11186
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
IN THE MATTER of Information No. A5025
BETWEEN K R WILLIAMS, Racing Investigator for the Racing Integrity Unit
Applicant
AND C W JOHNSON Licensed Class A Jockey
Respondent
Judicial Committee: S C Ching, Chairman - R G McKenzie, Committee Member
Present: K R Williams, Racing Investigator (for the Racing Integrity Unit)
Mr C W Johnson, the Respondent
Miss B Middlewood, Licensed trainer
Mr M R Pitman, Licensed trainer
Mr D Anderson, JCA Observer
Mr M Kermeen, Press reporter
Mr A McKerrow, Race track Chaplain
Mr J McLaughlin, Stipendiary Steward as Registrar
Date of Hearing: 3 June 2016
Venue: Riccarton Racecourse, Christchurch
Date of Decision: 7 June 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charge
[1] Information No. A5025 alleges that On the 24th day of May 2016, Christopher JOHNSON being the holder of an Class A Jockey’s licence issued under the New Zealand Thoroughbred Racing Rules, having been required under Rule 656(1) by Racecourse Investigator Mrs Williams to supply a sample of his urine to the authorised person, Ms C Bach (TDDA), which was found upon analysis to contain the controlled substance THC acid at a level of 43ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of Rule 656(3) of the New Zealand Thoroughbred Racing Rules and is liable to the penalties that may be imposed on him pursuant to the provisions of Rule 803(3).
The Plea
[2] The information was served on Mr Johnson on 26 May 2016 at 1600 hours. Mr Johnson signed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule on 29 May 2016 at 1512 hours.
[3] Mr Johnson was present at the hearing of the information and he confirmed that he admitted the breach and he understood the Rule was being charged with.
[4] The charge was found proved accordingly.
The Rule
[5] Rule 656 (3) provides as follows:
(3) A Rider, or any other Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or Investigator to supply a sample in accordance with this Rule must not have a 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. [Amended 1 December 2013] [Amended 1 August 2014]
Agreed Summary of Facts
[6] Mrs Williams produced documentation dated 26 May 2016, from the General Manager of the RIU, Mr M Godber, authorising Mrs Williams under Rule 903(2)(d), to lodge the information against Mr Johnson.
[7] Mrs Williams also provided documentation from TDDA indicating the non-negative result to cannabinoids taken on 24 May 2016 and ESR confirming the positive result to cannabinoids analysed on 25 May 2016.
[8] Mrs Williams presented the following agreed summary of facts:
1. The respondent Christopher William JOHNSON is a Class A (Jockey) Licenceholder under the Rules of New Zealand Thoroughbred Racing. Mr Johnson has held a licence since 1982, 34 years.
2. On the 24th May 2016 jockey/trackwork rider testing was conducted at the Canterbury Racing – North Canterbury Trials at Rangiora Raceway. Nine riders were selected for testing for alcohol and/or drugs.
3. Mr Johnson was served with a Drug Testing Notification Form by Racecourse Investigator Mrs Kylie Williams at 1049hrs. Mr Johnson tested “0” for alcohol at this time.
4. Mr Johnson rode a number of horses and presented for drug testing at the TDDA (The Drug Detection Agency) Van after the last trial at 1450hrs and supplied the required urine sample, U276661, to the authorised agent Ms Bach (TDDA).
5. Ms Bach, TDDA, advised by telephone that Mr Johnson’s sample showed a non-negative result for TCH (cannabis).
6. Ms Bach and Mr Johnson were interviewed at 1510hrs with Ms Bach advising the non-negative result and that the sample was to be forwarded to ESR for analysis.
7. On the 26th of May TDDA forwarded the confirmation from ESR that Mr Johnson’s sample U276661 was Positive for THC Acid with a level of 43ng/ml.
8. Mr Johnson cannot advise how Cannabis came to be in his system.
9. Mr Johnson was issued with a written notice on 26th of May 2016 advising him that his Class A Jockey’s licence was automatically withdrawn under Rule 657(1)(b) until such time as the Judicial Committee issues a substantive decision in relation to the information filed and that he will be required to produce a clear sample before being able to ride under rule 657(2)(b).
10. Mr Johnson was served with an Information alleging a breach of Rule 656(3) on 26th of May 2016 and did not enter a plea.
11. Mr Johnson presented himself for testing at the TDDA office in Christchurch for testing on the 27th of May 2016 with the result being “negative”.
12. Mr Johnson admitted a breach of Rule 656(3) on the 29th of May 2016 at 3.12pm.
13. Mr Johnson has not previously been charged with a breach of this rule.
Informant’s Penalty Submissions
[9] Mrs Williams presented the following submissions in relation to penalty:
1. Mr Johnson is a Class A (Jockey) Licence holder and has pleaded guilty to a breach of Rule 656(3) for supplying a sample of his urine which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of 43ng/ml.
2. Mr Johnson has not previously been charged with a breach of this rule.
3. The purpose of the drug testing rules is to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that jockeys/riders ride drug free. The safety and welfare of both jockey and horses is paramount. Testing has been conducted since 1995 and riders are aware there is an absolute obligation under the rules to present themselves free of the influences of any drugs. All riders are aware of the policy and the consequences should they not comply. The testing is conducted to ensure a safe and healthy workplace and to maintain the integrity of the industry.
4. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.
5. Historical penalties for breaches of the rules show some divergence dependent on the type of drug, the amount of the drug in the system and other mitigating and aggravating factors.
6. On this occasion Mr Johnson was riding at the trials at the Rangiora Racecourse while the drug THC (Cannabis) was in his body.
7. Sentencing Principles -
The four principals of sentencing can be summarised briefly
• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offenses.
• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.
The first three principles are particularly important here.
8. Relevant Precedents – In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents in Thoroughbred and Harness Racing.
R.I.U. v H WIKI 3 August 2011
Subject: Raceday Jockey – controlled substance THC acid (Cannabis) – 300ng/ml – suspended for three months and costs of $150 to the JCA.
R.I.U. v A GILLANDERS 8 October 2012
Subject: Raceday Jockey – controlled substance THC acid (Cannabis) – 73ng/ml – suspended for three months and costs of $172 to the RIU.
R.I.U v N Bishop 1 August 2012
Subject: Junior Horsewoman – controlled substance THC acid (Cannabis) 300ng/ml – suspended for 6 months, costs $397.21. Extract from JCA decision: “The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.”
R.I.U. v I J Brownlee 24 December 2015
Subject: Open Horseman - controlled substance THC acid (Cannabis) 73ng/ml – second offence suspended for 9 months, costs $187.50. Extract from JCA decision: “Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73ng/ml). We have not placed too much weight on this submission given that according to the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used. …and send a clear message to other industry participants that there is no place for illegal substance use within the industry.”
R.I.U. v G J Thomas 17 July 2014
Subject: Open Horseman - controlled substance THC acid (Cannabis) 220ng/ml – suspended for 5 months, costs $172.20. Extract from JCA decision: “There is a need to hold Mr Thomas accountable and to denounce his actions. There is also a need to impose a penalty that emphasises general deterrence.”
MITIGATING FACTORS
It is acknowledged that Mr Johnson has admitted the breach.
9. Mr Johnson has no previous breaches of this rule.
10. Mr Johnson has voluntarily presented himself for a further sample that was “negative” on 27th May 2016.
11. Mr Johnson has co-operated fully in this investigation.
AGGRAVATING FACTORS
12. Mr Johnson has been a licence holder for many years and is more than aware of the rules and the requirements to present himself alcohol and drug free. Mr Johnson has been tested 6 times this season for alcohol or drugs, and 24 times since the introduction of the RIU.
CONCLUSION
13. It is submitted that a three-month suspension of Mr Johnson’s race day Jockeys licence, backdated to the 26th of May when Mr Johnson was stood down from riding, and the cost of the ESR analysis of $187.50 should be imposed.
COSTS
14. The RIU are seeking costs for the ESR analysis of the sample of $187.50.
Submissions of the Respondent
[10] Mr Johnson was assisted at the hearing by his partner, Miss B Middlewood, licensed trainer and Mr M Pitman, Licensed Trainer. Mr Pitman explained to the Committee that Mr Johnson had ridden at the Timaru meeting on Friday 20 May where he had 7 rides. He said that the following day, 21 May, Mr Johnson had 6 rides at the Palmerston North meeting where he rode a winner. Mr Pitman said that Mr Johnson had driven back to Wellington that night and did not check into any accommodation but went to a hotel bar to watch the Joseph Parker fight and have a few drinks. Unfortunately for Mr Johnson, he said, he could not recall what happened between then and the next morning when he woke up at approximately 8.00am in his rental car. Mr Pitman stated that Mr Johnson had no idea how the cannabis got into his system. He said that it was possible if not probable that his drink, cigarette or food was spiked during his time at the bar.
Mr Johnson stated that he had watched the fight at the bar and struck up conversation with other patrons but did not know them personally. He said as far as he knew the other patrons did not know who he was or that he was a jockey.
Mr Pitman stated that Mr Johnson had not had a drink since this incident in Wellington as it had given him such a shock that he could not recall what happened during the evening and had believed he may have blacked out due to drinking in excess.
Mr Johnson said that when he eventually got home on the Sunday he had decided that he needed to address his drinking as he had missed his early flight to return to the South Island to ride at Riverton.
Miss Middlewood stated that Mr Johnson had previously ridden at the Timaru meeting on Friday, Palmerston North on Saturday and Riverton on Sunday meetings before and he had always managed to check in for his flight due at 6.30am in the morning of the Riverton day. Miss Middlewood tried to ring Mr Johnson on numerous occasions between 6 and 6.40am on the Sunday morning and thought something may be wrong as he did not answer. She said that she wasn’t too worried as he had never missed those 6.30am check in times before. Miss Middlewood did not follow up after that as she had to drive to hospital to visit her unwell father at approximately 8am. She did not realise there was an issue until she received several missed calls from Mr J McLaughlin, Stipendiary Steward at the Riverton meeting, alerting her to the fact that Mr Johnson had not arrived at the meeting.
In summing up Mr Pitman said that there was no explanation for the positive cannabis reading but that there was a suspicion that the incident on the Saturday night possibly had something to do with it. He said Mr Johnson had assured him he has had nothing to do with drugs for over 21 years and that he was a “drinker not a druggie”. This he said was proven by the fact that he had tested clear of drugs and alcohol 6 times this season and 24 times in total since the inception of the Racing Integrity Unit.
Mr Johnson, in conclusion, stated that racing was his life and he would never knowingly do anything to jeopardise his career.
Penalty submissions of the Respondent
[11] Mr Pitman provided written character references from Mr Tim Mills, CEO Canterbury Jockey Club, Mr John Tannahill, Barrister and Riders Agent for Mr Johnson, Mr D Griffiths, Contractor and friend of Mr Johnson, and Mr J & Mrs K Parsons, Licensed Trainers. Mr Andrew McKerrow, Race Track Chaplain, provided a written submission in support of Mr Johnson.
Mr Pitman produced Mr Johnson’s riding record which showed he had, in his career, ridden in nearly 16,000 races, as of 2 June 2016. He said that although he was advised not to submit to a re-test until the Tuesday (7 days) after his positive result, Mr Johnson voluntarily submitted for a new test on Friday 27 May with a negative/clear result. Mr Pitman provided to the Committee the results of that test carried out by TDDA which confirmed the clear result. Mr Pitman submitted that this result was hugely significant. He said that if Mr Johnson had been drug tested when driving a car or at a normal workplace he would have tested under the threshold of 50ng/ml and allowed to carry on driving or continue on at the workplace. He stated that Mr Johnson knows the rules and has been tested probably on more occasions than any other jockey, so why would he take the risk?
[12] Mr Pitman submitted that there were strong mitigating circumstances with this case. He said what is relevant to note is that Mr Johnson tested clear within 72 hours of the original test despite being advised to wait until the following Tuesday. He also said that Mr Johnson’s extensive career spanning nearly 16,000 rides must be taken into consideration. He said Mr Johnson has a huge reputation in the industry as well as high respect from his riding peers. Mr Johnson is a popular rider and is continually in demand from owners and trainers. He also is a popular jockey with the punters and has what could be described as a “cult” following. He said Mr Johnson has taken his responsibilities very seriously and has been clean for many years which is substantiated by his clear testing record. He stated that Mr Johnson has slipped up somehow when having a few drinks last Saturday night and that it is possible, if not probable, that something has happened during that evening to the effect that he has unknowingly ingested cannabis. He stated that this was the only possible explanation for Mr Johnson’s positive result.
[13] Mr Pitman submitted that the 3-months suspension suggested by the RIU should be adopted as a starting point and that all the positive things that Mr Johnson has achieved in his career, his clear record, his admission of the breach and his clear test within 72 hours of his positive result, act as mitigating factors. Taking those factors into consideration Mr Pitman submitted that a 6 to 8-week suspension be considered as penalty in this case.
[14] Mr Andrew McKerrow, as Race Track Chaplain, made a submission to the hearing to the effect that he had been working alongside NZTR, the RIU and the JCA to put together a robust drug and alcohol response for affected participants. He said this response was about a month away from being put into effect. He said that part of this response was that if a jockey was willing to engage in addressing his breach with the programme, that a penalty can be reduced and/or suspended until such time as he has completed a drug and alcohol education programme of some sort to show he is coming to terms with his problem. He submitted that Mr Johnson had made contact with him the day before the positive test, Monday 25 May, and has now voluntarily joined the programme to address his drinking. He stated that the first meeting with Mr Johnson and Miss Middlewood, was this coming Tuesday where he would be evaluated and a customised programme adopted. A support person would be appointed to assist him through the programme and that he himself would meet with Mr Johnson on a weekly or fortnightly basis as well. He said this was a good opportunity, using Mr Johnson with his high profile, to send a really strong message to the industry that if one is willing to be proactive in addressing drug and alcohol dependence, then it would be taken into consideration as a mitigating factor in assessing penalty.
Reasons for Penalty
[15] The relevant penalty Rule is 803(3) which provides:
(3) Subject to Rule 803(2)(b), where any Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licenceholder committing the breach may:
(a) be disqualified for a period not exceeding 5 years; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or
(c) be fined a sum not exceeding $50,000,
provided that if the Licenceholder committing an alcohol related breach is a Trainer and it is that Trainer’s first offence under these Rules in relation to drugs or alcohol from the date Rule 803(3) came into effect, then that Trainer may be fined a sum not exceeding $50,000 but shall not be suspended or disqualified for committing that first breach. [Amended 1 August 2014]
(4) Nothing in the preceding sub-Rules of this Rule shall apply to a Serious Racing Offence, or a breach of the type set out in Rule 804.
(5) The Judicial Committee may, in addition to or in substitution of any penalty imposed under this Rule, disqualify for any Race and/or for any period not exceeding 12 months, any horse connected with a breach.
(6) For the avoidance of doubt, a breach relating to the Prohibited Substance Regulations shall be dealt with under Rule 801 and/or Rule 804 and not this Rule 803. [Added 15 May 2015]
[16] In determining penalty the Committee took into consideration all aggravating and mitigating factors. An aggravating factor in this case is that it is possible, if not probable, that Mr Johnson’s drinking session at the bar in Wellington has given rise to him being put in a position where he has ingested cannabis involuntarily. There is no way to prove or disprove this theory but on the balance of probabilities, when taking all the relevant factors into consideration, it seems more likely than not that Mr Johnson’s drink, cigarettes or food has been spiked resulting in a blackout period during which he is unable to recall what happened the previous evening after arriving at the bar and waking up at 8am the next morning in his rental car.
[17] There are many mitigating factors in this case. Mr Johnsons frank admission of the breach and his clear record in regard to this Rule. His willingness and co-operation throughout the investigation with the RIU. His record that he has been tested on 24 occasions (6 this season) since the inception of the RIU, with all being clear results. The fact that Mr Johnson has admitted that he has an issue with alcohol and since this incident and before he was tested at the trials on Tuesday, has voluntarily committed himself to a programme to address his issues. Another factor the Committee took into consideration was the low level of TCH (Cannabis) detected being 43ng/ml and that Mr Johnson tested clear some 72 hours after the positive result at the trials.
[18] Previous penalties imposed for jockeys and drivers as submitted by Mrs Williams have been some assistance in determining penalty in this case.
RIU V H WIKI - In this case Mr Wiki was tested race day and was a jumps rider. To date he has had 6 career rides. He has not renewed his license since this suspension. His reading was 300ng/ml (Cannabis). Suspended 3 months.
RIU V A GILLANDERS - In this case Miss Gillanders was tested race day. She was an apprentice jockey at the time and has had to date 6 career rides. She also has not ridden since her suspension. Her reading was 73ng/ml (Cannabis). Suspended 3 months.
RIU V N BISHOP - In this case Ms Bishop was tested race day. She was a Junior Driver at the time and had only 6 career drives at the time of her suspension. Her reading was 300mg/ml (Cannabis) Suspended 6 months. Of note Ms Bishop’s breach was despite a previous conviction in the criminal court for possession of cannabis.
RIU V I J BROWNLEE - In this case Mr Brownlee was an open horseman and was tested race day. His record shows that he drove on 59 occasions the previous season to his suspension and since his suspension has only driven race day on 36 times. Reading 73 ng/ml (Cannabis) but second offence. Suspended 9 months.
RIU V GJ THOMAS – In this case Mr Thomas was an open horseman and was tested race day. His record shows that the previous season (2013) to his suspension he drove on 32 occasions with the season (2012) before that he had 62 drives. He has not held a licence since his suspension. His reading was 220/ng/ml(Cannabis). Suspended 5 months.
[19] Sentencing Principles as already noted above must be taken into account -
The four principals of sentencing can be summarised briefly
• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offenses.
• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.
[20] The Committee, in setting a meaningful penalty, with the above sentencing principles in mind, have adopted a starting point of a 3-months’ suspension in this case which is consistent with previous first offence, low level breaches resulting in 3-month’ suspensions. Aggravating factors usually command an uplift in penalty but in this case the Committee has determined that the circumstances of Mr Johnson’s unknown ingestion of cannabis is sufficient to render these aggravating factors neutral.
[21] In mitigation Mr Johnson has admitted the breach, has been open and co-operative with the RIU investigation, has an excellent record in regard to this Rule with no previous breaches, and has tested clear for every drug and alcohol test commissioned of him since testing was introduced. The Committee has also taken into account the low-level reading of 43ng/ml. Of particular note and also relevant in the sentencing principles of rehabilitation, is Mr Johnson’s desire to address his alcohol problem which was brought to a head with the incident in Wellington.
[22] The Committee in taking into account the strong mitigating factors in this case and the rehabilitation programme to be completed by Mr Johnson, determined that a discount of 1 month is warranted. We therefore determined that Mr Johnson’s licence to ride is suspended, backdated to the date of his stand down, 26 May, up to and including 26 July 2016 - a period of 2 months. In this period, we calculated that this would encompass 29 race days in the Southern and Central Districts areas, where Mr Johnson predominately rides.
[23] At the time of the hearing the Committee also ordered that, as Mr Johnson had produced a clear drug test on Friday 29 May 2016, his mandatory stand-down following his failed drug test on 26 May be lifted with just his race day licence under suspension.
[24] Mr Johnson was also ordered to produce a clear drug test just prior to reinstatement of his riding licence as well as produce evidence that he was enrolled and under treatment in the rehabilitation programme for his alcohol problem.
Penalty
[25] Accordingly Mr Johnson jockey’s licence (Class A) is suspended for a period of 2 months from 26 May up to and including 26 July 2016.
Costs
[26] The only costs sought by the RIU are awarded, for the ESR analysis of the sample, being $187.50.
[27] The hearing of the charges took place on a race day and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.
S C Ching R G McKenzie
Chair Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 09/06/2016
Publish Date: 09/06/2016
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.
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decisiondate: 09/06/2016
hearing_title: Non Raceday Inquiry RIU v CW Johnson - Reserved Decision dated 7 June 2016 - Chair, Mr S Ching
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
IN THE MATTER of Information No. A5025
BETWEEN K R WILLIAMS, Racing Investigator for the Racing Integrity Unit
Applicant
AND C W JOHNSON Licensed Class A Jockey
Respondent
Judicial Committee: S C Ching, Chairman - R G McKenzie, Committee Member
Present: K R Williams, Racing Investigator (for the Racing Integrity Unit)
Mr C W Johnson, the Respondent
Miss B Middlewood, Licensed trainer
Mr M R Pitman, Licensed trainer
Mr D Anderson, JCA Observer
Mr M Kermeen, Press reporter
Mr A McKerrow, Race track Chaplain
Mr J McLaughlin, Stipendiary Steward as Registrar
Date of Hearing: 3 June 2016
Venue: Riccarton Racecourse, Christchurch
Date of Decision: 7 June 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
The Charge
[1] Information No. A5025 alleges that On the 24th day of May 2016, Christopher JOHNSON being the holder of an Class A Jockey’s licence issued under the New Zealand Thoroughbred Racing Rules, having been required under Rule 656(1) by Racecourse Investigator Mrs Williams to supply a sample of his urine to the authorised person, Ms C Bach (TDDA), which was found upon analysis to contain the controlled substance THC acid at a level of 43ng/ml, (cannabis), as defined in the Misuse of Drugs Act, 1975. The respondent is alleged to have thereby committed a breach of Rule 656(3) of the New Zealand Thoroughbred Racing Rules and is liable to the penalties that may be imposed on him pursuant to the provisions of Rule 803(3).
The Plea
[2] The information was served on Mr Johnson on 26 May 2016 at 1600 hours. Mr Johnson signed the Statement by the Respondent on the information form indicating that he admitted the breach of the Rule on 29 May 2016 at 1512 hours.
[3] Mr Johnson was present at the hearing of the information and he confirmed that he admitted the breach and he understood the Rule was being charged with.
[4] The charge was found proved accordingly.
The Rule
[5] Rule 656 (3) provides as follows:
(3) A Rider, or any other Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises, who, having been required by a Stipendiary Steward or Investigator to supply a sample in accordance with this Rule must not have a 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. [Amended 1 December 2013] [Amended 1 August 2014]
Agreed Summary of Facts
[6] Mrs Williams produced documentation dated 26 May 2016, from the General Manager of the RIU, Mr M Godber, authorising Mrs Williams under Rule 903(2)(d), to lodge the information against Mr Johnson.
[7] Mrs Williams also provided documentation from TDDA indicating the non-negative result to cannabinoids taken on 24 May 2016 and ESR confirming the positive result to cannabinoids analysed on 25 May 2016.
[8] Mrs Williams presented the following agreed summary of facts:
1. The respondent Christopher William JOHNSON is a Class A (Jockey) Licenceholder under the Rules of New Zealand Thoroughbred Racing. Mr Johnson has held a licence since 1982, 34 years.
2. On the 24th May 2016 jockey/trackwork rider testing was conducted at the Canterbury Racing – North Canterbury Trials at Rangiora Raceway. Nine riders were selected for testing for alcohol and/or drugs.
3. Mr Johnson was served with a Drug Testing Notification Form by Racecourse Investigator Mrs Kylie Williams at 1049hrs. Mr Johnson tested “0” for alcohol at this time.
4. Mr Johnson rode a number of horses and presented for drug testing at the TDDA (The Drug Detection Agency) Van after the last trial at 1450hrs and supplied the required urine sample, U276661, to the authorised agent Ms Bach (TDDA).
5. Ms Bach, TDDA, advised by telephone that Mr Johnson’s sample showed a non-negative result for TCH (cannabis).
6. Ms Bach and Mr Johnson were interviewed at 1510hrs with Ms Bach advising the non-negative result and that the sample was to be forwarded to ESR for analysis.
7. On the 26th of May TDDA forwarded the confirmation from ESR that Mr Johnson’s sample U276661 was Positive for THC Acid with a level of 43ng/ml.
8. Mr Johnson cannot advise how Cannabis came to be in his system.
9. Mr Johnson was issued with a written notice on 26th of May 2016 advising him that his Class A Jockey’s licence was automatically withdrawn under Rule 657(1)(b) until such time as the Judicial Committee issues a substantive decision in relation to the information filed and that he will be required to produce a clear sample before being able to ride under rule 657(2)(b).
10. Mr Johnson was served with an Information alleging a breach of Rule 656(3) on 26th of May 2016 and did not enter a plea.
11. Mr Johnson presented himself for testing at the TDDA office in Christchurch for testing on the 27th of May 2016 with the result being “negative”.
12. Mr Johnson admitted a breach of Rule 656(3) on the 29th of May 2016 at 3.12pm.
13. Mr Johnson has not previously been charged with a breach of this rule.
Informant’s Penalty Submissions
[9] Mrs Williams presented the following submissions in relation to penalty:
1. Mr Johnson is a Class A (Jockey) Licence holder and has pleaded guilty to a breach of Rule 656(3) for supplying a sample of his urine which was found upon analysis to contain the controlled substance THC acid (cannabis) at a level of 43ng/ml.
2. Mr Johnson has not previously been charged with a breach of this rule.
3. The purpose of the drug testing rules is to enable random testing to be carried out at any trial, race meeting or public training track at any time to ensure that jockeys/riders ride drug free. The safety and welfare of both jockey and horses is paramount. Testing has been conducted since 1995 and riders are aware there is an absolute obligation under the rules to present themselves free of the influences of any drugs. All riders are aware of the policy and the consequences should they not comply. The testing is conducted to ensure a safe and healthy workplace and to maintain the integrity of the industry.
4. Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.
5. Historical penalties for breaches of the rules show some divergence dependent on the type of drug, the amount of the drug in the system and other mitigating and aggravating factors.
6. On this occasion Mr Johnson was riding at the trials at the Rangiora Racecourse while the drug THC (Cannabis) was in his body.
7. Sentencing Principles -
The four principals of sentencing can be summarised briefly
• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offenses.
• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.
The first three principles are particularly important here.
8. Relevant Precedents – In addition to the sentencing principles the Judicial Committee should have regard to relevant precedents in Thoroughbred and Harness Racing.
R.I.U. v H WIKI 3 August 2011
Subject: Raceday Jockey – controlled substance THC acid (Cannabis) – 300ng/ml – suspended for three months and costs of $150 to the JCA.
R.I.U. v A GILLANDERS 8 October 2012
Subject: Raceday Jockey – controlled substance THC acid (Cannabis) – 73ng/ml – suspended for three months and costs of $172 to the RIU.
R.I.U v N Bishop 1 August 2012
Subject: Junior Horsewoman – controlled substance THC acid (Cannabis) 300ng/ml – suspended for 6 months, costs $397.21. Extract from JCA decision: “The use of drugs seriously impugns the integrity of racing, and in particular, the safety of horsemen and women and horses being driven at race meetings.”
R.I.U. v I J Brownlee 24 December 2015
Subject: Open Horseman - controlled substance THC acid (Cannabis) 73ng/ml – second offence suspended for 9 months, costs $187.50. Extract from JCA decision: “Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73ng/ml). We have not placed too much weight on this submission given that according to the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used. …and send a clear message to other industry participants that there is no place for illegal substance use within the industry.”
R.I.U. v G J Thomas 17 July 2014
Subject: Open Horseman - controlled substance THC acid (Cannabis) 220ng/ml – suspended for 5 months, costs $172.20. Extract from JCA decision: “There is a need to hold Mr Thomas accountable and to denounce his actions. There is also a need to impose a penalty that emphasises general deterrence.”
MITIGATING FACTORS
It is acknowledged that Mr Johnson has admitted the breach.
9. Mr Johnson has no previous breaches of this rule.
10. Mr Johnson has voluntarily presented himself for a further sample that was “negative” on 27th May 2016.
11. Mr Johnson has co-operated fully in this investigation.
AGGRAVATING FACTORS
12. Mr Johnson has been a licence holder for many years and is more than aware of the rules and the requirements to present himself alcohol and drug free. Mr Johnson has been tested 6 times this season for alcohol or drugs, and 24 times since the introduction of the RIU.
CONCLUSION
13. It is submitted that a three-month suspension of Mr Johnson’s race day Jockeys licence, backdated to the 26th of May when Mr Johnson was stood down from riding, and the cost of the ESR analysis of $187.50 should be imposed.
COSTS
14. The RIU are seeking costs for the ESR analysis of the sample of $187.50.
Submissions of the Respondent
[10] Mr Johnson was assisted at the hearing by his partner, Miss B Middlewood, licensed trainer and Mr M Pitman, Licensed Trainer. Mr Pitman explained to the Committee that Mr Johnson had ridden at the Timaru meeting on Friday 20 May where he had 7 rides. He said that the following day, 21 May, Mr Johnson had 6 rides at the Palmerston North meeting where he rode a winner. Mr Pitman said that Mr Johnson had driven back to Wellington that night and did not check into any accommodation but went to a hotel bar to watch the Joseph Parker fight and have a few drinks. Unfortunately for Mr Johnson, he said, he could not recall what happened between then and the next morning when he woke up at approximately 8.00am in his rental car. Mr Pitman stated that Mr Johnson had no idea how the cannabis got into his system. He said that it was possible if not probable that his drink, cigarette or food was spiked during his time at the bar.
Mr Johnson stated that he had watched the fight at the bar and struck up conversation with other patrons but did not know them personally. He said as far as he knew the other patrons did not know who he was or that he was a jockey.
Mr Pitman stated that Mr Johnson had not had a drink since this incident in Wellington as it had given him such a shock that he could not recall what happened during the evening and had believed he may have blacked out due to drinking in excess.
Mr Johnson said that when he eventually got home on the Sunday he had decided that he needed to address his drinking as he had missed his early flight to return to the South Island to ride at Riverton.
Miss Middlewood stated that Mr Johnson had previously ridden at the Timaru meeting on Friday, Palmerston North on Saturday and Riverton on Sunday meetings before and he had always managed to check in for his flight due at 6.30am in the morning of the Riverton day. Miss Middlewood tried to ring Mr Johnson on numerous occasions between 6 and 6.40am on the Sunday morning and thought something may be wrong as he did not answer. She said that she wasn’t too worried as he had never missed those 6.30am check in times before. Miss Middlewood did not follow up after that as she had to drive to hospital to visit her unwell father at approximately 8am. She did not realise there was an issue until she received several missed calls from Mr J McLaughlin, Stipendiary Steward at the Riverton meeting, alerting her to the fact that Mr Johnson had not arrived at the meeting.
In summing up Mr Pitman said that there was no explanation for the positive cannabis reading but that there was a suspicion that the incident on the Saturday night possibly had something to do with it. He said Mr Johnson had assured him he has had nothing to do with drugs for over 21 years and that he was a “drinker not a druggie”. This he said was proven by the fact that he had tested clear of drugs and alcohol 6 times this season and 24 times in total since the inception of the Racing Integrity Unit.
Mr Johnson, in conclusion, stated that racing was his life and he would never knowingly do anything to jeopardise his career.
Penalty submissions of the Respondent
[11] Mr Pitman provided written character references from Mr Tim Mills, CEO Canterbury Jockey Club, Mr John Tannahill, Barrister and Riders Agent for Mr Johnson, Mr D Griffiths, Contractor and friend of Mr Johnson, and Mr J & Mrs K Parsons, Licensed Trainers. Mr Andrew McKerrow, Race Track Chaplain, provided a written submission in support of Mr Johnson.
Mr Pitman produced Mr Johnson’s riding record which showed he had, in his career, ridden in nearly 16,000 races, as of 2 June 2016. He said that although he was advised not to submit to a re-test until the Tuesday (7 days) after his positive result, Mr Johnson voluntarily submitted for a new test on Friday 27 May with a negative/clear result. Mr Pitman provided to the Committee the results of that test carried out by TDDA which confirmed the clear result. Mr Pitman submitted that this result was hugely significant. He said that if Mr Johnson had been drug tested when driving a car or at a normal workplace he would have tested under the threshold of 50ng/ml and allowed to carry on driving or continue on at the workplace. He stated that Mr Johnson knows the rules and has been tested probably on more occasions than any other jockey, so why would he take the risk?
[12] Mr Pitman submitted that there were strong mitigating circumstances with this case. He said what is relevant to note is that Mr Johnson tested clear within 72 hours of the original test despite being advised to wait until the following Tuesday. He also said that Mr Johnson’s extensive career spanning nearly 16,000 rides must be taken into consideration. He said Mr Johnson has a huge reputation in the industry as well as high respect from his riding peers. Mr Johnson is a popular rider and is continually in demand from owners and trainers. He also is a popular jockey with the punters and has what could be described as a “cult” following. He said Mr Johnson has taken his responsibilities very seriously and has been clean for many years which is substantiated by his clear testing record. He stated that Mr Johnson has slipped up somehow when having a few drinks last Saturday night and that it is possible, if not probable, that something has happened during that evening to the effect that he has unknowingly ingested cannabis. He stated that this was the only possible explanation for Mr Johnson’s positive result.
[13] Mr Pitman submitted that the 3-months suspension suggested by the RIU should be adopted as a starting point and that all the positive things that Mr Johnson has achieved in his career, his clear record, his admission of the breach and his clear test within 72 hours of his positive result, act as mitigating factors. Taking those factors into consideration Mr Pitman submitted that a 6 to 8-week suspension be considered as penalty in this case.
[14] Mr Andrew McKerrow, as Race Track Chaplain, made a submission to the hearing to the effect that he had been working alongside NZTR, the RIU and the JCA to put together a robust drug and alcohol response for affected participants. He said this response was about a month away from being put into effect. He said that part of this response was that if a jockey was willing to engage in addressing his breach with the programme, that a penalty can be reduced and/or suspended until such time as he has completed a drug and alcohol education programme of some sort to show he is coming to terms with his problem. He submitted that Mr Johnson had made contact with him the day before the positive test, Monday 25 May, and has now voluntarily joined the programme to address his drinking. He stated that the first meeting with Mr Johnson and Miss Middlewood, was this coming Tuesday where he would be evaluated and a customised programme adopted. A support person would be appointed to assist him through the programme and that he himself would meet with Mr Johnson on a weekly or fortnightly basis as well. He said this was a good opportunity, using Mr Johnson with his high profile, to send a really strong message to the industry that if one is willing to be proactive in addressing drug and alcohol dependence, then it would be taken into consideration as a mitigating factor in assessing penalty.
Reasons for Penalty
[15] The relevant penalty Rule is 803(3) which provides:
(3) Subject to Rule 803(2)(b), where any Licenceholder who has carried out, is carrying out, or is likely to carry out, a Safety Sensitive Activity at a Racecourse, Training Facility or Trainer’s Premises commits or is deemed to have committed a breach of these Rules related to drugs or alcohol and a penalty is not provided elsewhere in these Rules for that breach, that Licenceholder committing the breach may:
(a) be disqualified for a period not exceeding 5 years; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; and/or
(c) be fined a sum not exceeding $50,000,
provided that if the Licenceholder committing an alcohol related breach is a Trainer and it is that Trainer’s first offence under these Rules in relation to drugs or alcohol from the date Rule 803(3) came into effect, then that Trainer may be fined a sum not exceeding $50,000 but shall not be suspended or disqualified for committing that first breach. [Amended 1 August 2014]
(4) Nothing in the preceding sub-Rules of this Rule shall apply to a Serious Racing Offence, or a breach of the type set out in Rule 804.
(5) The Judicial Committee may, in addition to or in substitution of any penalty imposed under this Rule, disqualify for any Race and/or for any period not exceeding 12 months, any horse connected with a breach.
(6) For the avoidance of doubt, a breach relating to the Prohibited Substance Regulations shall be dealt with under Rule 801 and/or Rule 804 and not this Rule 803. [Added 15 May 2015]
[16] In determining penalty the Committee took into consideration all aggravating and mitigating factors. An aggravating factor in this case is that it is possible, if not probable, that Mr Johnson’s drinking session at the bar in Wellington has given rise to him being put in a position where he has ingested cannabis involuntarily. There is no way to prove or disprove this theory but on the balance of probabilities, when taking all the relevant factors into consideration, it seems more likely than not that Mr Johnson’s drink, cigarettes or food has been spiked resulting in a blackout period during which he is unable to recall what happened the previous evening after arriving at the bar and waking up at 8am the next morning in his rental car.
[17] There are many mitigating factors in this case. Mr Johnsons frank admission of the breach and his clear record in regard to this Rule. His willingness and co-operation throughout the investigation with the RIU. His record that he has been tested on 24 occasions (6 this season) since the inception of the RIU, with all being clear results. The fact that Mr Johnson has admitted that he has an issue with alcohol and since this incident and before he was tested at the trials on Tuesday, has voluntarily committed himself to a programme to address his issues. Another factor the Committee took into consideration was the low level of TCH (Cannabis) detected being 43ng/ml and that Mr Johnson tested clear some 72 hours after the positive result at the trials.
[18] Previous penalties imposed for jockeys and drivers as submitted by Mrs Williams have been some assistance in determining penalty in this case.
RIU V H WIKI - In this case Mr Wiki was tested race day and was a jumps rider. To date he has had 6 career rides. He has not renewed his license since this suspension. His reading was 300ng/ml (Cannabis). Suspended 3 months.
RIU V A GILLANDERS - In this case Miss Gillanders was tested race day. She was an apprentice jockey at the time and has had to date 6 career rides. She also has not ridden since her suspension. Her reading was 73ng/ml (Cannabis). Suspended 3 months.
RIU V N BISHOP - In this case Ms Bishop was tested race day. She was a Junior Driver at the time and had only 6 career drives at the time of her suspension. Her reading was 300mg/ml (Cannabis) Suspended 6 months. Of note Ms Bishop’s breach was despite a previous conviction in the criminal court for possession of cannabis.
RIU V I J BROWNLEE - In this case Mr Brownlee was an open horseman and was tested race day. His record shows that he drove on 59 occasions the previous season to his suspension and since his suspension has only driven race day on 36 times. Reading 73 ng/ml (Cannabis) but second offence. Suspended 9 months.
RIU V GJ THOMAS – In this case Mr Thomas was an open horseman and was tested race day. His record shows that the previous season (2013) to his suspension he drove on 32 occasions with the season (2012) before that he had 62 drives. He has not held a licence since his suspension. His reading was 220/ng/ml(Cannabis). Suspended 5 months.
[19] Sentencing Principles as already noted above must be taken into account -
The four principals of sentencing can be summarised briefly
• Penalties are designed to punish the offender for his / her wrongdoing. They are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
• In a racing context it is extremely important that a penalty has the effect of deterring others from committing like offenses.
• A penalty should also reflect the disapproval of the JCA for the type of behaviour in question.
• The need to rehabilitate the offender should be taken into account.
[20] The Committee, in setting a meaningful penalty, with the above sentencing principles in mind, have adopted a starting point of a 3-months’ suspension in this case which is consistent with previous first offence, low level breaches resulting in 3-month’ suspensions. Aggravating factors usually command an uplift in penalty but in this case the Committee has determined that the circumstances of Mr Johnson’s unknown ingestion of cannabis is sufficient to render these aggravating factors neutral.
[21] In mitigation Mr Johnson has admitted the breach, has been open and co-operative with the RIU investigation, has an excellent record in regard to this Rule with no previous breaches, and has tested clear for every drug and alcohol test commissioned of him since testing was introduced. The Committee has also taken into account the low-level reading of 43ng/ml. Of particular note and also relevant in the sentencing principles of rehabilitation, is Mr Johnson’s desire to address his alcohol problem which was brought to a head with the incident in Wellington.
[22] The Committee in taking into account the strong mitigating factors in this case and the rehabilitation programme to be completed by Mr Johnson, determined that a discount of 1 month is warranted. We therefore determined that Mr Johnson’s licence to ride is suspended, backdated to the date of his stand down, 26 May, up to and including 26 July 2016 - a period of 2 months. In this period, we calculated that this would encompass 29 race days in the Southern and Central Districts areas, where Mr Johnson predominately rides.
[23] At the time of the hearing the Committee also ordered that, as Mr Johnson had produced a clear drug test on Friday 29 May 2016, his mandatory stand-down following his failed drug test on 26 May be lifted with just his race day licence under suspension.
[24] Mr Johnson was also ordered to produce a clear drug test just prior to reinstatement of his riding licence as well as produce evidence that he was enrolled and under treatment in the rehabilitation programme for his alcohol problem.
Penalty
[25] Accordingly Mr Johnson jockey’s licence (Class A) is suspended for a period of 2 months from 26 May up to and including 26 July 2016.
Costs
[26] The only costs sought by the RIU are awarded, for the ESR analysis of the sample, being $187.50.
[27] The hearing of the charges took place on a race day and, in the circumstances, no order for costs is made in favour of the Judicial Control Authority.
S C Ching R G McKenzie
Chair Committee Member
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