Non Raceday Inquiry RIU v S Barlow – 10 September 2011 – Decision 16 October 2011
ID: JCA12266
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER OF THE NEW ZEALAND RULES OF RACING
BETWEEN: Racing Integrity Unit
INFORMANT
AND
Mr Steven Barlow, Licensed Trainer
RESPONDENT
DATE OF HEARING: Saturday September 10th 2001
VENUE: Awapuni Racecourse, Palmerston North
JUDICIAL COMMITTEE: Mrs N Moffatt (Chairman), Mr T Utikere (Committee Member)
PRESENT: Mr R Neal (Informant) Mr S Barlow (Respondent)
REGISTRAR: Mr B Bevege
DATE OF DECISION: October 16th 2011
Decision of Judicial Committee
(1) Mr Barlow appears before the Judicial Committee on the following charge:
THAT having on Tuesday 2nd August 2011 at Woodville Racecourse been required by a Stipendiary Steward to supply a sample of your urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, you had urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you 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 Barlow admitted the charge and acknowledged that he had received a copy of Rule 656(3) and that he understood that Rule.
Facts
(4) Mr Neal provided written authority from the Operations Manager of the Racing Integrity Unit to proceed with the charge against Mr Barlow and he also presented a Summary of Facts.
(5) On Tuesday 2nd August 2011 RIU officials conducted routine drug testing at the Woodville Racecourse.
(6) The Respondent, Mr Steven Barlow, was one of the people selected to be tested. Mr Barlow was approached by Stipendiary Steward Ross Neal at approximately 7.50am and served with the appropriate notice and directed to attend the testing station prior to leaving the course on that day.
(7) The Respondent duly attended the testing station as requested and supplied a sample of his urine at 9.20am. This sample was given a unique ID number.
(8) The sample along with all other samples was delivered to the ESR Laboratory in Porirua by Steward Neal on Wednesday 3rd August 2011 at 8.00am
(9) On Monday 8th August 2011 NZTR received written notification from the Institute of Environmental Scientific and Research Ltd (ESR) that Mr Barlow’s urine sample had tested not negative for the presence of Cannabis. This was in effect a positive result. (Copy of document provided)
(10) On Tuesday 9th August 2011 the Respondent was served with a stand down notice pursuant to Rule 657 (1) (b) of the Rules of Racing. The effect of this being that as from the time of service and until the conclusion of the hearing of the matter the Respondents licence was effectively withdrawn. The Respondent acknowledged he understood and accepted the situation without question.
(11) An explanation was sought from the Respondent as to how cannabis could have been in his system. The Respondent readily admitted that he had imbibed in cannabis some time earlier at a social gathering and this must have been the cause of the adverse result.
(12) At the conclusion of the interview the Respondent was advised that he would be charged and he would be contacted and formally charged in the coming days.
(13) During the process of testing and subsequent interview the Respondent was totally co-operative and provided open and honest answers to all enquiries.
(14) Mr Barlow acknowledged that the facts as presented by Mr Neal were correct.
Penalty Submissions by Mr Neal for RIU
(15) 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.
(16) 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.
(17) These policies relating to drugs have been well gazetted and riders have been made fully aware of the potential consequences should they imbibe in such drugs.
(18) 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 track work alike. Mr Neal said that Mr Barlow’s sample showed a very low drug level.
(19) The reason for testing riders are 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.
(20) 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 taking or administering an illicit substance, and the fact that a rider has the presence of an illicit substance in his system represents a risk to not only themselves but also others.
(21) With respect to historical penalties imposed against riders for breaches of the drug rules these are varied and 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.
(22) As evidenced from the attached schedule of historical penalties for breaches of the drug rules these show some divergence. Firstly due to the substance detected and secondly because of the circumstances of the individual offender.
(23) With respect to this offence the substance detected, Cannabis is classified within a group known as Class ‘C’ drugs. Therefore the penalty sought is not as significant as it would have been had the drug been Class ‘A’.
(24) However notwithstanding this classification the RIU considers that any prohibited drug found to be in a riders system to be inherently detrimental to racing and accordingly the penalty sought must reflect the seriousness and the concern that this raises.
(25) Those persons who present themselves to ride either in track work or races are well aware of the duties that rest with them with respect to ensuring that they do so drug free. On this occasion the Respondent has not complied with this requirement and commensurately he finds himself before you today.
(26) The Respondent is a young man who is attempting to establish himself in the training ranks in the Central Districts. He has impressed the Stewards with his enthusiasm and his work ethic and in the normal course of events causes the Stewards no concern.
(27) As part of his duties he rides track work at the Woodville track and is considered able and competent and is well regarded by his peers.
(28) With respect to penalty it is the Informants position that a period of suspension of the Respondents licence is required together with a modest fine. The Respondent is a trainer and as such the effect of a suspension on a person so licensed can be somewhat problematic given that trainers may not be seen to be as active in riding horses but rather their role is more supervisory. However the Respondent does ride work and that is a relevant consideration.
(29) Because of the above it is submitted that a period of suspension together with a deterrent fine should be imposed. With respect to quantum it is further submitted that the suspension should be one of 3 months and the fine in the range of $500.00
Penalty Submissions by Mr Barlow
(30) Mr Barlow told the committee that he had made a single mistake. He used cannabis at a party a few days before being tested but said this was a one-off occasion and that he was not a drug user at all.
(31) Mr Barlow explained that he had held a trainer’s license for 4 years and it was a family business with his wife and his father. They train 17 horses and while his father also holds a trainer’s license he has an outside job and acts more in a guidance role rather than being hands–on.
(32) He said that he had a young family and was really just starting out as a trainer. He was hoping to build horse numbers up and was very disappointed in himself for making this mistake.
(33) Mr Barlow made no specific submissions on penalty.
Decision
(34) This is a unique situation. Mr Barlow holds a Class A Trainers License which allows him to train horses and ride track work. It was while riding track work that he was drug tested on the morning of August 2nd 2011 at the Woodville racecourse.
(35) In his penalty submissions Mr Neal provided a schedule of historical penalties however all of these cases were charges against either licensed riders or licensed track work riders.
(36) Where a licensed rider is drug tested and found to be positive they are stood down from riding but may continue to ride track work.
(37) In the case of Mr Barlow (being a licensed trainer) his circumstances differ. The committee referred to Rule 1106 (1):
“During the terms of any suspension and irrespective of whether such suspension has been duly notified in accordance with any of the preceding Rules in this Part XI the person who is suspended shall not:
(a) If the person holds a Trainer’s License, train a horse or, without the prior written consent of NZTR, be employed or work or assist in any capacity in connection with the care, control, training or riding of a horse.”
(38) The Judicial Committee explained to Mr Neal and Mr Barlow that, according to Rule 1106 (1), any suspension of Mr Barlow’s license would prevent him from taking part in any aspect of training horses and would in effect close down his training operation as it works currently. He is responsible for all the day to day running of the stable. This would be a significantly greater penalty than is warranted under the circumstances.
(39) Mr Neal said that the RIU only sought a suspension from Mr Barlow riding track work.
(40) The Judicial Committee was not satisfied that it had the jurisdiction under the Rules to suspend only one part of a license however Rule 1106 (1) (a) does allow for consent from NZTR to grant an “exemption”.
(41) We adjourned the hearing and reserved our decision to allow for additional submissions.
(42) The Judicial Committee received on October 5th 2011 additional written submissions from Mr Neal which read:
1. At the Judicial hearing into Mr Barlow’s charge on Saturday 10th September the Judicial Committee asked the Informant to ascertain NZTR’s position with respect to Rule 1106 (1) (a). Clarification was sought by the committee regarding Mr Barlow’s ability to still be involved, albeit to a limited capacity; with horses should the committee determine that a period of suspension of his trainer’s licence was appropriate.
2. NZTR’s response is that should such a suspension be imposed then it would permit him [as prescribed in Rule 1106 (1)] to be involved with the ‘care, control and training’ of horses but not riding.
3. This clarifies Mr Barlow’s position insomuch as any suspension would not preclude him from still being involved with his horses.
4. It remains the Informants position that the appropriate penalty is a suspension of his trainer’s licence for a period of some 3 months coupled with a fine in the region of $500.00
5. This penalty obviously to reflect the time already served by Mr Barlow.
Decision and Penalty
(43) In coming to a decision on penalty we carefully considered all of the submissions placed before us.
(44) In mitigation Mr Barlow has cooperated fully and honestly with the Racing Integrity Unit. He has a clear record and we are willing to accept his assertion that he made a one-off mistake and is not a habitual drug user. We have also taken into consideration Mr Barlow’s youth, his remorse and that he is supporting a young family.
(45) The integrity of racing is paramount and the racing industry has made it very clear that drugs will not be tolerated. The safety of both horse and riders is at risk if riders are under the influence of drugs. This is regardless of whether it is on race day or track work riding.
(46) We have taken into account Mr Barlow’s status as a trainer. He has a very clear obligation to operate within the rules. There was no precedent put before us for a licensed trainer breaching this rule however Mr Barlow is responsible for the care and training of 17 horses and looking to expand that number. If he wants to succeed he must display a high level of integrity.
(47) In view of the fact that Mr Barlow’s license was withdrawn on August 9th 2011 we formally reinstate his license as from October 16th 2011.
Penalty:
(48) Taking all matters into account we are satisfied that an appropriate penalty in this case is one of three months suspension. The suspension is to take effect from the date of his “stand down notice” which is 9th August 2011 and to end on 9th November 2011 inclusive.
Costs
(49) The RIU does not seek costs and as the matter was heard on race-day there is no award in favour of the Judicial Control Authority.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 11/10/2011
Publish Date: 11/10/2011
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: 48018e98a2e33e5c5e25cfdc2aefc576
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 11/10/2011
hearing_title: Non Raceday Inquiry RIU v S Barlow - 10 September 2011 - Decision 16 October 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER OF THE NEW ZEALAND RULES OF RACING
BETWEEN: Racing Integrity Unit
INFORMANT
AND
Mr Steven Barlow, Licensed Trainer
RESPONDENT
DATE OF HEARING: Saturday September 10th 2001
VENUE: Awapuni Racecourse, Palmerston North
JUDICIAL COMMITTEE: Mrs N Moffatt (Chairman), Mr T Utikere (Committee Member)
PRESENT: Mr R Neal (Informant) Mr S Barlow (Respondent)
REGISTRAR: Mr B Bevege
DATE OF DECISION: October 16th 2011
Decision of Judicial Committee
(1) Mr Barlow appears before the Judicial Committee on the following charge:
THAT having on Tuesday 2nd August 2011 at Woodville Racecourse been required by a Stipendiary Steward to supply a sample of your urine in accordance with Rule 656(3) of the New Zealand Rules of Racing, you had urine which was found, upon analysis, to contain the controlled drug Cannabis as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656(3) AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you 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 Barlow admitted the charge and acknowledged that he had received a copy of Rule 656(3) and that he understood that Rule.
Facts
(4) Mr Neal provided written authority from the Operations Manager of the Racing Integrity Unit to proceed with the charge against Mr Barlow and he also presented a Summary of Facts.
(5) On Tuesday 2nd August 2011 RIU officials conducted routine drug testing at the Woodville Racecourse.
(6) The Respondent, Mr Steven Barlow, was one of the people selected to be tested. Mr Barlow was approached by Stipendiary Steward Ross Neal at approximately 7.50am and served with the appropriate notice and directed to attend the testing station prior to leaving the course on that day.
(7) The Respondent duly attended the testing station as requested and supplied a sample of his urine at 9.20am. This sample was given a unique ID number.
(8) The sample along with all other samples was delivered to the ESR Laboratory in Porirua by Steward Neal on Wednesday 3rd August 2011 at 8.00am
(9) On Monday 8th August 2011 NZTR received written notification from the Institute of Environmental Scientific and Research Ltd (ESR) that Mr Barlow’s urine sample had tested not negative for the presence of Cannabis. This was in effect a positive result. (Copy of document provided)
(10) On Tuesday 9th August 2011 the Respondent was served with a stand down notice pursuant to Rule 657 (1) (b) of the Rules of Racing. The effect of this being that as from the time of service and until the conclusion of the hearing of the matter the Respondents licence was effectively withdrawn. The Respondent acknowledged he understood and accepted the situation without question.
(11) An explanation was sought from the Respondent as to how cannabis could have been in his system. The Respondent readily admitted that he had imbibed in cannabis some time earlier at a social gathering and this must have been the cause of the adverse result.
(12) At the conclusion of the interview the Respondent was advised that he would be charged and he would be contacted and formally charged in the coming days.
(13) During the process of testing and subsequent interview the Respondent was totally co-operative and provided open and honest answers to all enquiries.
(14) Mr Barlow acknowledged that the facts as presented by Mr Neal were correct.
Penalty Submissions by Mr Neal for RIU
(15) 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.
(16) 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.
(17) These policies relating to drugs have been well gazetted and riders have been made fully aware of the potential consequences should they imbibe in such drugs.
(18) 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 track work alike. Mr Neal said that Mr Barlow’s sample showed a very low drug level.
(19) The reason for testing riders are 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.
(20) 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 taking or administering an illicit substance, and the fact that a rider has the presence of an illicit substance in his system represents a risk to not only themselves but also others.
(21) With respect to historical penalties imposed against riders for breaches of the drug rules these are varied and 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.
(22) As evidenced from the attached schedule of historical penalties for breaches of the drug rules these show some divergence. Firstly due to the substance detected and secondly because of the circumstances of the individual offender.
(23) With respect to this offence the substance detected, Cannabis is classified within a group known as Class ‘C’ drugs. Therefore the penalty sought is not as significant as it would have been had the drug been Class ‘A’.
(24) However notwithstanding this classification the RIU considers that any prohibited drug found to be in a riders system to be inherently detrimental to racing and accordingly the penalty sought must reflect the seriousness and the concern that this raises.
(25) Those persons who present themselves to ride either in track work or races are well aware of the duties that rest with them with respect to ensuring that they do so drug free. On this occasion the Respondent has not complied with this requirement and commensurately he finds himself before you today.
(26) The Respondent is a young man who is attempting to establish himself in the training ranks in the Central Districts. He has impressed the Stewards with his enthusiasm and his work ethic and in the normal course of events causes the Stewards no concern.
(27) As part of his duties he rides track work at the Woodville track and is considered able and competent and is well regarded by his peers.
(28) With respect to penalty it is the Informants position that a period of suspension of the Respondents licence is required together with a modest fine. The Respondent is a trainer and as such the effect of a suspension on a person so licensed can be somewhat problematic given that trainers may not be seen to be as active in riding horses but rather their role is more supervisory. However the Respondent does ride work and that is a relevant consideration.
(29) Because of the above it is submitted that a period of suspension together with a deterrent fine should be imposed. With respect to quantum it is further submitted that the suspension should be one of 3 months and the fine in the range of $500.00
Penalty Submissions by Mr Barlow
(30) Mr Barlow told the committee that he had made a single mistake. He used cannabis at a party a few days before being tested but said this was a one-off occasion and that he was not a drug user at all.
(31) Mr Barlow explained that he had held a trainer’s license for 4 years and it was a family business with his wife and his father. They train 17 horses and while his father also holds a trainer’s license he has an outside job and acts more in a guidance role rather than being hands–on.
(32) He said that he had a young family and was really just starting out as a trainer. He was hoping to build horse numbers up and was very disappointed in himself for making this mistake.
(33) Mr Barlow made no specific submissions on penalty.
Decision
(34) This is a unique situation. Mr Barlow holds a Class A Trainers License which allows him to train horses and ride track work. It was while riding track work that he was drug tested on the morning of August 2nd 2011 at the Woodville racecourse.
(35) In his penalty submissions Mr Neal provided a schedule of historical penalties however all of these cases were charges against either licensed riders or licensed track work riders.
(36) Where a licensed rider is drug tested and found to be positive they are stood down from riding but may continue to ride track work.
(37) In the case of Mr Barlow (being a licensed trainer) his circumstances differ. The committee referred to Rule 1106 (1):
“During the terms of any suspension and irrespective of whether such suspension has been duly notified in accordance with any of the preceding Rules in this Part XI the person who is suspended shall not:
(a) If the person holds a Trainer’s License, train a horse or, without the prior written consent of NZTR, be employed or work or assist in any capacity in connection with the care, control, training or riding of a horse.”
(38) The Judicial Committee explained to Mr Neal and Mr Barlow that, according to Rule 1106 (1), any suspension of Mr Barlow’s license would prevent him from taking part in any aspect of training horses and would in effect close down his training operation as it works currently. He is responsible for all the day to day running of the stable. This would be a significantly greater penalty than is warranted under the circumstances.
(39) Mr Neal said that the RIU only sought a suspension from Mr Barlow riding track work.
(40) The Judicial Committee was not satisfied that it had the jurisdiction under the Rules to suspend only one part of a license however Rule 1106 (1) (a) does allow for consent from NZTR to grant an “exemption”.
(41) We adjourned the hearing and reserved our decision to allow for additional submissions.
(42) The Judicial Committee received on October 5th 2011 additional written submissions from Mr Neal which read:
1. At the Judicial hearing into Mr Barlow’s charge on Saturday 10th September the Judicial Committee asked the Informant to ascertain NZTR’s position with respect to Rule 1106 (1) (a). Clarification was sought by the committee regarding Mr Barlow’s ability to still be involved, albeit to a limited capacity; with horses should the committee determine that a period of suspension of his trainer’s licence was appropriate.
2. NZTR’s response is that should such a suspension be imposed then it would permit him [as prescribed in Rule 1106 (1)] to be involved with the ‘care, control and training’ of horses but not riding.
3. This clarifies Mr Barlow’s position insomuch as any suspension would not preclude him from still being involved with his horses.
4. It remains the Informants position that the appropriate penalty is a suspension of his trainer’s licence for a period of some 3 months coupled with a fine in the region of $500.00
5. This penalty obviously to reflect the time already served by Mr Barlow.
Decision and Penalty
(43) In coming to a decision on penalty we carefully considered all of the submissions placed before us.
(44) In mitigation Mr Barlow has cooperated fully and honestly with the Racing Integrity Unit. He has a clear record and we are willing to accept his assertion that he made a one-off mistake and is not a habitual drug user. We have also taken into consideration Mr Barlow’s youth, his remorse and that he is supporting a young family.
(45) The integrity of racing is paramount and the racing industry has made it very clear that drugs will not be tolerated. The safety of both horse and riders is at risk if riders are under the influence of drugs. This is regardless of whether it is on race day or track work riding.
(46) We have taken into account Mr Barlow’s status as a trainer. He has a very clear obligation to operate within the rules. There was no precedent put before us for a licensed trainer breaching this rule however Mr Barlow is responsible for the care and training of 17 horses and looking to expand that number. If he wants to succeed he must display a high level of integrity.
(47) In view of the fact that Mr Barlow’s license was withdrawn on August 9th 2011 we formally reinstate his license as from October 16th 2011.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
(48) Taking all matters into account we are satisfied that an appropriate penalty in this case is one of three months suspension. The suspension is to take effect from the date of his “stand down notice” which is 9th August 2011 and to end on 9th November 2011 inclusive.
Costs
(49) The RIU does not seek costs and as the matter was heard on race-day there is no award in favour of the Judicial Control Authority.
hearing_type: Non-race day
Rules: 656(3)
Informant: Mr R Neal - Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Mr B Bevege - Registrar
Respondent: Mr S Barlow
StipendSteward:
raceid:
race_expapproval:
racecancelled:
race_noreport:
race_emailed1:
race_emailed2:
race_title:
submittochair:
race_expappcomment:
race_km:
race_otherexp:
race_chair:
race_pm1:
race_pm2:
meetid:
meet_expapproval:
meet_noreport:
waitingforpublication:
meet_emailed1:
meet_emailed2:
meetdate: no date provided
meet_title:
meet_expappcomment:
meet_km:
meet_otherexp:
tracklocation:
meet_racingtype:
meet_chair:
meet_pm1:
meet_pm2:
name: