Non Raceday Inquiry RIU v IJ Brownlee – Decision dated 24 December 2015 – Chair, Mr G Jones
ID: JCA13614
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN Mr Andy Cruickshank (Racing Integrity Unit)
Informant
AND
Mr Ival James Brownlee
Respondent
JUDICIAL COMMITTEE: Mr G Jones (Chair) and Mr B Scott (Committee Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr Cruickshank, Mr I J Brownlee, Mr J Brownlee (snr), Mr S Mulcay (Registrar)
DATE OF HEARING: 22 December 2015
DATE OF DECISION: 22 December 2015
DATE OF PENALTY DECISION: 24 December 2015
The Charge
1) A charge was brought against Mr I J Brownlee (the “respondent”) by Mr Cruickshank (the “Informant”) alleging that:
On the 5th day of November 2015, at the Cambridge Raceway, Cambridge, having been required by an Investigator to supply a sample of urine in accordance with Rule 512(1) of the New Zealand Rules of Harness Racing, had urine which was found, upon analysis, to contain the controlled drug THC Acid (cannabis) as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 1003(1) of the said Rules.
2) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rule 512 (1) and Rule 1003 (Penalty provisions)
Rule 512(1) provides:
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 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, artefacts or isomers.
Rule 1003 provides:
(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(12), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months;
3) By way of memorandum dated 16 November 2015, Mr M Godber, General Manger, RIU authorised the charge against the respondent pursuant to Rule 1108(2).
4) Full particulars of the charge are contained within Information number A7124 which was served on the respondent on 16 November 2015. The respondent has endorsed the Information “I do admit the breach of the rule”.
5) At the commencement of the hearing the charge was put to the respondent who acknowledged its nature and substance and confirmed his admission of the breach. Given that the respondent admitted the breach of the Rule, the charge is proven. On that basis the provisions of Rule 1003 apply in relation to penalty options.
6) The respondent has acknowledged he had seen all the relevant documents and that he accepts the summary of facts. The proposed procedure for the conduct of the hearing was explained to both the informant and the respondent. They confirmed that they had no concerns or objections with the proposed procedure.
7) The respondent was supported at this hearing by his father Mr J Brownlee (snr).
Summary of Facts / Evidence
Mr Cruickshank presented an agreed summary of facts. The key relevant points are as follows:
8) On Thursday 5th November 2015, officials from the Racing Integrity Unit conducted routine drug testing of Horsemen at the Harness Racing Waikato race meeting at the Cambridge Raceway in Cambridge.
9) The drug testing was conducted in the specialist workplace drug testing van by The Drug Detection Agency (TDDA).
10) The respondent was one of ten drivers randomly selected for testing and was served the appropriate notice at 5.43pm by an Investigator.
11) The respondent presented himself at 7.20pm and provided the required urine sample at 7.35pm. The sample was given unique number U259156 and forwarded to the ESR the following day by a Drug Detection Agency authorised agent of the Racing Integrity Unit.
12) On Monday 16th November 2015, the Racing Integrity Unit was advised, in writing, that the sample provided by the Respondent had, on analysis, been found to contain the controlled substance THC Acid (cannabis) at a level of 73 ng/ml.
13) A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 514(2)(a) and (b) were served on the Respondent on the 16th day of November 2015.
14) When spoken to the respondent admitted that he used Cannabis for medicinal purposes, the details of which were disclosed to the RIU and the Committee.
15) The respondent stated that he never used cannabis anywhere near a race day when he was driving as it was not professional and could be dangerous.
Submissions by the Respondent
In response to the summary of facts Mr Brownlee submitted:
16) That he agreed with the summary of facts but emphasised that he only used cannabis as a medication and his use was infrequent.
17) That has never used cannabis on or in close proximity to a race day. In this case he said that he smoked cannabis on the Saturday evening prior to racing on Thursday night.
Submissions as to Penalty
In relation to penalty Mr Cruickshank submitted that:
18) The respondent is a licensed Trainer and Horseman and has held a Drivers licence since 1990 and a Trainers Licence since 1995.
19) The respondent has admitted a breach of the rules in relation to the positive drug test undertaken on 5th November 2015 at the Cambridge Raceway in Cambridge.
20) New Zealand Harness Racing has been drug testing industry participants for a number of years and during that time there has been a growing awareness that there is an absolute obligation on those driving horses to present themselves free of the influences of any drugs.
21) All Horsemen are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons, firstly, the need to maintain a healthy and safe workplace and secondly to maintain the integrity of the industry.
22) Historical penalties for breaches of the industry drug laws show some divergence. The type of drug, the situation and the amount of the drug in the system add to this divergence.
23) On this occasion the respondent presented himself and drove at the Harness Racing Waikato meeting while the drug THC Acid (Cannabis) was within his body (73 ng/ml).
24) Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.
25) The aggravating factor in this case is that the respondent has a previous Rule breach relating to drug use.
26) The mitigating factors are that the respondent:
a. Admitted the breach at the earliest opportunity
b. Voluntarily stood himself down from driving from the date of the initial indicative test on 5 November 2015
27) The Informant referred to the following cases in support of penalty:
28) RIU v G.J. THOMAS (17.07.14): Open Horseman tested positive to THC Acid (220 ng/ml). Good character, no previous drug rule breaches, just over 5 months suspension. No fine.
29) RIU v N.N. BISHOP (1.08.12): Junior Horsewoman tested positive to THC Acid (in excess of 300 ng/ml). 6 months suspension. No fine.
30) RIU v I.J. BROWNLEE (29.06.12): Public Trainer and Open Horseman tested positive to Methamphetamine, Amphetamine and THC Acid. Suspended for 12 months plus costs.
31) It is submitted that a period of 6 months suspension of his Horseman’s licence and the cost of the analysis of $187.50 (to the RIU) should be imposed.
32) The Committee queried Mr Cruickshank as to whether the RIU had a particular view on this being the respondents second breach of a drug rule within a short timeframe. In response Mr Cruickshank submitted that the second breach is an aggravating factor, but the first breach related to methamphetamine and cannabis, whereas this breach is cannabis only; and on this occasion the THC level was relatively low at 73 ng/ml.
In relation to penalty Mr Brownlee submitted:
33) That as soon as he was advised of the result of analysis he stood himself down from race driving.
34) He said that at 73 ng/ml the level of THC was low compared to other cases referred to by the Informant – (in RIU v Thomas the THC level was 220 ng/ml and in RIU v Bishop the THC level was 300 ng/ml).
35) He advised that he had previously discussed his medical condition with his doctor and preferred to not take prescription medicine. He added that his use of cannabis on this occasion was in a moment of weakness.
36) The respondent submitted that so much has changed in his personal life since his previous breach more than two and half years ago; notably he is now in a stable relationship and has two children under 2 years old to support. He said that his children were now his priority in life and he sincerely regretted that on this occasion he had not only let himself down, but also his family and supporters. He also accepted that cannabis use could be a significant safety issue for not only him, but also other participants.
37) He acknowledged that over the past 2 years he has participated in counselling for his drug problems, but he believes that further counselling is now not required.
38) Mr Brownlee (snr) submitted that he has never seen his son use cannabis and not does believe he would have driven to and from a race meeting, or participated in race driving whilst impaired.
39) He said that a disqualification as opposed to a suspension would have a significant impact given that his son lived on the family farm and a disqualification would require him to leave the farm which is where he bases his training operation.
40) He submitted that in addition to training at any one time up to 8 of the family horses, his son is also responsible for the day to day management of stock and farm maintenance. He said that a disqualification would be a significant hardship for his wider family.
41) In response to a query from the Committee we were advised the respondent had approximately 54 race drives last season (2014/15) and 24 drives so far this current season. We were told that the respondent’s team of 8 horses are in full work and ready to race, with 2 further horses to come into work shortly. The respondent was proposing to race the majority of his team over the summer period at the various grass track venues. It was also submitted that it would not be easy to source a substitute driver if a suspension or disqualification were imposed.
Reasons for Penalty
42) The Committee has carefully considered the facts and submissions lodged by the informant and respondent and to the extent they exist we have weighed up the factors that we have determined to be mitigating and aggravating. We have also had due regard to the circumstances of the breach as well as the respondents level of culpability and his personal circumstances.
43) The informant has submitted that historical penalties for breaches of the industry drug laws show some divergence and the type of drug, the situation and the amount of the drug in the system add to this divergence. The aggravating factor in this case is that the respondent has a previous Rule breach relating to drug use.
44) The informant submitted that there are two mitigating factors for the Committee to consider, namely that the respondent:
a. Admitted the breach at the earliest opportunity
b. Voluntarily stood himself down from driving from the date of the initial indicative test on 5 November 2015
45) The informant also highlighted the previous breach as an aggravating factor. We understand that the previous breach arose after Mr Brownlee tested positive for methamphetamine, amphetamine and cannabis. That breach was almost 3 years ago and resulted in a 12 month suspension of the respondents Horseman’s Licence. We treat this second breach as a significant aggravating factor.
46) We have been advised and taken into account the fact that the respondent has been involved in the racing industry for more than 25 years; he derives his income solely from the racing industry and supports his partner and two young children.
47) When initially spoken to by the RIU Investigation Unit about this breach, the respondent acknowledged he used cannabis for medicinal purposes and that he has never used cannabis on or close to a race day. The respondent reiterated these points in his submissions and we accept there is no suggestion of drug use on race day.
48) We have also noted and considered the respondents submission relating to the impact of disqualification as opposed to suspension. We are aware of the need to ensure that any proposed penalty is proportionate to the breach itself and the surrounding circumstances, and moreover that it is not disproportionate in terms of its effect.
49) Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73 ng/ml). We have not placed too much weight on this submission given that according the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used”.
50) The Committee is mindful of the fact that breaches of similar culpability should, as a general rule attract broadly similar penalties and with this in mind we have taken guidance from the decisions submitted by the informant for our consideration. In particular we have noted the various similarities and points of difference. Our assessment of those decisions is that a suspension in the vicinity of 5 or 6 months sets the benchmark for a first breach of this rule where there are minimal aggravating factors.
51) We have noted the informant’s submission that a period of 6 months suspension of the respondents Horseman’s License would be an appropriate penalty for this breach. Under the circumstances we do not agree that a 6 months suspension is entirely appropriate. Where there is a second breach of this rule within a relatively short period of time, in our view, a penalty uplift is reasonable and necessary.
52) The Committee is firmly of the view that there is a strong need to censure the respondents conduct and send a clear message to other industry participants that there is no place for illegal substances use within the industry.. Accordingly, we are satisfied that a lengthy suspension period is an appropriate penalty.
53) Therefore taking into account the 6 month benchmark as indicated by the precedent cases, we have adopted a 12 month suspension as a starting point for a second breach. We give 3 months credit to the respondent for his early admission; his willingness to voluntarily stand himself down from race driving and we have taken into account his personal circumstances.
Penalty and Costs
54) Having carefully considered all of the material that has been placed before us we impose the following penalties and make the following orders:
55) Mr Brownlee is suspended from holding (or obtaining) an Open Horseman’s licence for a period of 9 months. This suspension commences on 22 December 2015. We note and highlight the provisions of Rule 1304 (2) which set out the criteria for the application of suspensions. For the sake of clarity, Rule 1304 provides that:
1304 (1) Every suspension of a horseman or a horseman’s licence imposed by a Judicial Committee during any day of a race meeting shall take effect as follows:
(a) on the completion of the horseman's driving engagements on the day the suspension is imposed if at that time the horseman has no engagements to drive a horse in a betting race during the next seven days; or
(b) if on the day the suspension is imposed the horseman has engagements to drive a horse in a betting race during the next seven days then from the earlier of:
(i) the completion of such engagements within that seven day period; or
(ii) the completion of that seven day period.
(2) Every suspension of a horseman or a horseman's licence which is imposed by a Judicial Committee otherwise than during any day of a race meeting or by an Appeals Tribunal shall take effect immediately subject to the same proviso as is referred to in sub-rule (1) of this Rule.
Suspension
Rule 1311 provides that:
(1) Any person who is suspended from holding or obtaining a licence shall, during the period of suspension, be prohibited from doing any act or thing which he would otherwise be authorised to do regardless of whether he is the holder of any other licence, permit or authority under these Rules which authorises or permits the driving of such act or thing.
(3) Notwithstanding sub-rule (1) hereof a person who has been suspended from holding or obtaining a horseman’s licence shall not during the period of suspension drive any horse at a race meeting, but shall be permitted to drive at trials and work outs. (a) in the case of a horseman’s licence classified as a junior horseman’s licence drive any horse at a race meeting in respect of which racing betting takes place.
56) The respondent is ordered to reimburse the RIU $187.50, being the cost of the Analysts fee.
57) The RIU did not seek costs.
58) Although this matter was heard on a raceday it was conducted in the nature of a non-race hearing, and some JCA costs have been incurred on the basis that 1 of the Committee members was not involved in race day proceedings. . However, on this occasion the JCA have not sought costs.
G R Jones (Chair) B Scott (Committee Member)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 29/12/2015
Publish Date: 29/12/2015
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: 4d9a0d142d4a7d4b76a5f9893fc67b4d
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 29/12/2015
hearing_title: Non Raceday Inquiry RIU v IJ Brownlee - Decision dated 24 December 2015 - Chair, Mr G Jones
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN Mr Andy Cruickshank (Racing Integrity Unit)
Informant
AND
Mr Ival James Brownlee
Respondent
JUDICIAL COMMITTEE: Mr G Jones (Chair) and Mr B Scott (Committee Member)
VENUE: Alexandra Park, Auckland
PRESENT: Mr Cruickshank, Mr I J Brownlee, Mr J Brownlee (snr), Mr S Mulcay (Registrar)
DATE OF HEARING: 22 December 2015
DATE OF DECISION: 22 December 2015
DATE OF PENALTY DECISION: 24 December 2015
The Charge
1) A charge was brought against Mr I J Brownlee (the “respondent”) by Mr Cruickshank (the “Informant”) alleging that:
On the 5th day of November 2015, at the Cambridge Raceway, Cambridge, having been required by an Investigator to supply a sample of urine in accordance with Rule 512(1) of the New Zealand Rules of Harness Racing, had urine which was found, upon analysis, to contain the controlled drug THC Acid (cannabis) as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 1003(1) of the said Rules.
2) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rule 512 (1) and Rule 1003 (Penalty provisions)
Rule 512(1) provides:
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 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, artefacts or isomers.
Rule 1003 provides:
(1) A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(12), 113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:
(a) a fine not exceeding $10,000; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months;
3) By way of memorandum dated 16 November 2015, Mr M Godber, General Manger, RIU authorised the charge against the respondent pursuant to Rule 1108(2).
4) Full particulars of the charge are contained within Information number A7124 which was served on the respondent on 16 November 2015. The respondent has endorsed the Information “I do admit the breach of the rule”.
5) At the commencement of the hearing the charge was put to the respondent who acknowledged its nature and substance and confirmed his admission of the breach. Given that the respondent admitted the breach of the Rule, the charge is proven. On that basis the provisions of Rule 1003 apply in relation to penalty options.
6) The respondent has acknowledged he had seen all the relevant documents and that he accepts the summary of facts. The proposed procedure for the conduct of the hearing was explained to both the informant and the respondent. They confirmed that they had no concerns or objections with the proposed procedure.
7) The respondent was supported at this hearing by his father Mr J Brownlee (snr).
Summary of Facts / Evidence
Mr Cruickshank presented an agreed summary of facts. The key relevant points are as follows:
8) On Thursday 5th November 2015, officials from the Racing Integrity Unit conducted routine drug testing of Horsemen at the Harness Racing Waikato race meeting at the Cambridge Raceway in Cambridge.
9) The drug testing was conducted in the specialist workplace drug testing van by The Drug Detection Agency (TDDA).
10) The respondent was one of ten drivers randomly selected for testing and was served the appropriate notice at 5.43pm by an Investigator.
11) The respondent presented himself at 7.20pm and provided the required urine sample at 7.35pm. The sample was given unique number U259156 and forwarded to the ESR the following day by a Drug Detection Agency authorised agent of the Racing Integrity Unit.
12) On Monday 16th November 2015, the Racing Integrity Unit was advised, in writing, that the sample provided by the Respondent had, on analysis, been found to contain the controlled substance THC Acid (cannabis) at a level of 73 ng/ml.
13) A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 514(2)(a) and (b) were served on the Respondent on the 16th day of November 2015.
14) When spoken to the respondent admitted that he used Cannabis for medicinal purposes, the details of which were disclosed to the RIU and the Committee.
15) The respondent stated that he never used cannabis anywhere near a race day when he was driving as it was not professional and could be dangerous.
Submissions by the Respondent
In response to the summary of facts Mr Brownlee submitted:
16) That he agreed with the summary of facts but emphasised that he only used cannabis as a medication and his use was infrequent.
17) That has never used cannabis on or in close proximity to a race day. In this case he said that he smoked cannabis on the Saturday evening prior to racing on Thursday night.
Submissions as to Penalty
In relation to penalty Mr Cruickshank submitted that:
18) The respondent is a licensed Trainer and Horseman and has held a Drivers licence since 1990 and a Trainers Licence since 1995.
19) The respondent has admitted a breach of the rules in relation to the positive drug test undertaken on 5th November 2015 at the Cambridge Raceway in Cambridge.
20) New Zealand Harness Racing has been drug testing industry participants for a number of years and during that time there has been a growing awareness that there is an absolute obligation on those driving horses to present themselves free of the influences of any drugs.
21) All Horsemen are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons, firstly, the need to maintain a healthy and safe workplace and secondly to maintain the integrity of the industry.
22) Historical penalties for breaches of the industry drug laws show some divergence. The type of drug, the situation and the amount of the drug in the system add to this divergence.
23) On this occasion the respondent presented himself and drove at the Harness Racing Waikato meeting while the drug THC Acid (Cannabis) was within his body (73 ng/ml).
24) Cannabis is a Class C controlled drug as defined in the Misuse of Drugs Act 1975.
25) The aggravating factor in this case is that the respondent has a previous Rule breach relating to drug use.
26) The mitigating factors are that the respondent:
a. Admitted the breach at the earliest opportunity
b. Voluntarily stood himself down from driving from the date of the initial indicative test on 5 November 2015
27) The Informant referred to the following cases in support of penalty:
28) RIU v G.J. THOMAS (17.07.14): Open Horseman tested positive to THC Acid (220 ng/ml). Good character, no previous drug rule breaches, just over 5 months suspension. No fine.
29) RIU v N.N. BISHOP (1.08.12): Junior Horsewoman tested positive to THC Acid (in excess of 300 ng/ml). 6 months suspension. No fine.
30) RIU v I.J. BROWNLEE (29.06.12): Public Trainer and Open Horseman tested positive to Methamphetamine, Amphetamine and THC Acid. Suspended for 12 months plus costs.
31) It is submitted that a period of 6 months suspension of his Horseman’s licence and the cost of the analysis of $187.50 (to the RIU) should be imposed.
32) The Committee queried Mr Cruickshank as to whether the RIU had a particular view on this being the respondents second breach of a drug rule within a short timeframe. In response Mr Cruickshank submitted that the second breach is an aggravating factor, but the first breach related to methamphetamine and cannabis, whereas this breach is cannabis only; and on this occasion the THC level was relatively low at 73 ng/ml.
In relation to penalty Mr Brownlee submitted:
33) That as soon as he was advised of the result of analysis he stood himself down from race driving.
34) He said that at 73 ng/ml the level of THC was low compared to other cases referred to by the Informant – (in RIU v Thomas the THC level was 220 ng/ml and in RIU v Bishop the THC level was 300 ng/ml).
35) He advised that he had previously discussed his medical condition with his doctor and preferred to not take prescription medicine. He added that his use of cannabis on this occasion was in a moment of weakness.
36) The respondent submitted that so much has changed in his personal life since his previous breach more than two and half years ago; notably he is now in a stable relationship and has two children under 2 years old to support. He said that his children were now his priority in life and he sincerely regretted that on this occasion he had not only let himself down, but also his family and supporters. He also accepted that cannabis use could be a significant safety issue for not only him, but also other participants.
37) He acknowledged that over the past 2 years he has participated in counselling for his drug problems, but he believes that further counselling is now not required.
38) Mr Brownlee (snr) submitted that he has never seen his son use cannabis and not does believe he would have driven to and from a race meeting, or participated in race driving whilst impaired.
39) He said that a disqualification as opposed to a suspension would have a significant impact given that his son lived on the family farm and a disqualification would require him to leave the farm which is where he bases his training operation.
40) He submitted that in addition to training at any one time up to 8 of the family horses, his son is also responsible for the day to day management of stock and farm maintenance. He said that a disqualification would be a significant hardship for his wider family.
41) In response to a query from the Committee we were advised the respondent had approximately 54 race drives last season (2014/15) and 24 drives so far this current season. We were told that the respondent’s team of 8 horses are in full work and ready to race, with 2 further horses to come into work shortly. The respondent was proposing to race the majority of his team over the summer period at the various grass track venues. It was also submitted that it would not be easy to source a substitute driver if a suspension or disqualification were imposed.
Reasons for Penalty
42) The Committee has carefully considered the facts and submissions lodged by the informant and respondent and to the extent they exist we have weighed up the factors that we have determined to be mitigating and aggravating. We have also had due regard to the circumstances of the breach as well as the respondents level of culpability and his personal circumstances.
43) The informant has submitted that historical penalties for breaches of the industry drug laws show some divergence and the type of drug, the situation and the amount of the drug in the system add to this divergence. The aggravating factor in this case is that the respondent has a previous Rule breach relating to drug use.
44) The informant submitted that there are two mitigating factors for the Committee to consider, namely that the respondent:
a. Admitted the breach at the earliest opportunity
b. Voluntarily stood himself down from driving from the date of the initial indicative test on 5 November 2015
45) The informant also highlighted the previous breach as an aggravating factor. We understand that the previous breach arose after Mr Brownlee tested positive for methamphetamine, amphetamine and cannabis. That breach was almost 3 years ago and resulted in a 12 month suspension of the respondents Horseman’s Licence. We treat this second breach as a significant aggravating factor.
46) We have been advised and taken into account the fact that the respondent has been involved in the racing industry for more than 25 years; he derives his income solely from the racing industry and supports his partner and two young children.
47) When initially spoken to by the RIU Investigation Unit about this breach, the respondent acknowledged he used cannabis for medicinal purposes and that he has never used cannabis on or close to a race day. The respondent reiterated these points in his submissions and we accept there is no suggestion of drug use on race day.
48) We have also noted and considered the respondents submission relating to the impact of disqualification as opposed to suspension. We are aware of the need to ensure that any proposed penalty is proportionate to the breach itself and the surrounding circumstances, and moreover that it is not disproportionate in terms of its effect.
49) Both the informant and respondent made reference to the relatively low level of THC referred to in the Analyst Certificate (73 ng/ml). We have not placed too much weight on this submission given that according the Analyst Certificate “THC Acid levels do not indicate impairment or when or how much cannabis is used”.
50) The Committee is mindful of the fact that breaches of similar culpability should, as a general rule attract broadly similar penalties and with this in mind we have taken guidance from the decisions submitted by the informant for our consideration. In particular we have noted the various similarities and points of difference. Our assessment of those decisions is that a suspension in the vicinity of 5 or 6 months sets the benchmark for a first breach of this rule where there are minimal aggravating factors.
51) We have noted the informant’s submission that a period of 6 months suspension of the respondents Horseman’s License would be an appropriate penalty for this breach. Under the circumstances we do not agree that a 6 months suspension is entirely appropriate. Where there is a second breach of this rule within a relatively short period of time, in our view, a penalty uplift is reasonable and necessary.
52) The Committee is firmly of the view that there is a strong need to censure the respondents conduct and send a clear message to other industry participants that there is no place for illegal substances use within the industry.. Accordingly, we are satisfied that a lengthy suspension period is an appropriate penalty.
53) Therefore taking into account the 6 month benchmark as indicated by the precedent cases, we have adopted a 12 month suspension as a starting point for a second breach. We give 3 months credit to the respondent for his early admission; his willingness to voluntarily stand himself down from race driving and we have taken into account his personal circumstances.
Penalty and Costs
54) Having carefully considered all of the material that has been placed before us we impose the following penalties and make the following orders:
55) Mr Brownlee is suspended from holding (or obtaining) an Open Horseman’s licence for a period of 9 months. This suspension commences on 22 December 2015. We note and highlight the provisions of Rule 1304 (2) which set out the criteria for the application of suspensions. For the sake of clarity, Rule 1304 provides that:
1304 (1) Every suspension of a horseman or a horseman’s licence imposed by a Judicial Committee during any day of a race meeting shall take effect as follows:
(a) on the completion of the horseman's driving engagements on the day the suspension is imposed if at that time the horseman has no engagements to drive a horse in a betting race during the next seven days; or
(b) if on the day the suspension is imposed the horseman has engagements to drive a horse in a betting race during the next seven days then from the earlier of:
(i) the completion of such engagements within that seven day period; or
(ii) the completion of that seven day period.
(2) Every suspension of a horseman or a horseman's licence which is imposed by a Judicial Committee otherwise than during any day of a race meeting or by an Appeals Tribunal shall take effect immediately subject to the same proviso as is referred to in sub-rule (1) of this Rule.
Suspension
Rule 1311 provides that:
(1) Any person who is suspended from holding or obtaining a licence shall, during the period of suspension, be prohibited from doing any act or thing which he would otherwise be authorised to do regardless of whether he is the holder of any other licence, permit or authority under these Rules which authorises or permits the driving of such act or thing.
(3) Notwithstanding sub-rule (1) hereof a person who has been suspended from holding or obtaining a horseman’s licence shall not during the period of suspension drive any horse at a race meeting, but shall be permitted to drive at trials and work outs. (a) in the case of a horseman’s licence classified as a junior horseman’s licence drive any horse at a race meeting in respect of which racing betting takes place.
56) The respondent is ordered to reimburse the RIU $187.50, being the cost of the Analysts fee.
57) The RIU did not seek costs.
58) Although this matter was heard on a raceday it was conducted in the nature of a non-race hearing, and some JCA costs have been incurred on the basis that 1 of the Committee members was not involved in race day proceedings. . However, on this occasion the JCA have not sought costs.
G R Jones (Chair) B Scott (Committee Member)
sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Non-race day
Rules:
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
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: