Non Raceday Inquiry RIU v M J Donoghue – Reserved Decision dated 30 November 2019 – Chair, Mr G Jones

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decisiondate: 03/12/2019

hearing_title: Non Raceday Inquiry RIU v M J Donoghue - Reserved Decision dated 30 November 2019 - Chair, Mr G Jones

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NON RACEDAY INQUIRY RIU V M DONOGHUE – RESERVED PENALTY DECISION DATED 30 NOVEMBER 2019 - CHAIR, MR G JONES

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

AT TAURANGA

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Thoroughbred Racing

BETWEEN RACING INTEGRITY UNIT

Oscar WESTERLUND (Investigator)

Informant

AND Mark John DONOGHUE (Licensed Trackwork Rider and Stable Hand)

Respondent

Judicial Committee: Mr Gavin Jones (Chairman), Mr Alan Godsalve (Member)

Appearing: Mr O Westerlund (for the Informant) – Mr M Donoghue (as the Respondent), Mr A Scott (In support)

Venue: Racing Tauranga Racecourse

Date of Hearing: 28 November 2019

Date of Written Decision: 30 November 2019

RESERVED DECISION OF JUDICIAL COMMITTEE

INTRODUCTION

[1]-This charge was heard at the Tauranga racecourse on 28 November 2019. Licensed Trackwork Rider and Stable Hand Mr M J Donoghue (“the Respondent”) appeared in person to answer a charge alleging he breached New Zealand Rules of Thoroughbred Racing; specifically rule number 656 (3) which relates to a positive test to the controlled drugs, Methamphetamine and Amphetamine. Methamphetamine is a Class A controlled drug as defined in the Misuse of Drugs Act 1975.

[2]-The Respondent was supported throughout the hearing by his employer Mr A Scott, representing the Matamata based Licensed training partnership of L O’Sullivan and A Scott.

[3]-On 7 November 2019, pursuant to NZ Thoroughbred Racing Rule 903 (2)(d) Mr M Godber the RIU General Manager, authorised Racing Investigator, Mr O Westerlund to lodge an information charging the Respondent with the breach of Rule 656 (3).

[4]-On 8 November 2019 Information Number A8478 was served on Mr Donoghue and he endorsed the Information “I do admit the breach of the rule”.

THE CHARGE

[5]-At the commencement of the hearing the charge was formally put to the Respondent and he confirmed his admission of the breach of the Rule and the penalty hearing proceeded on that basis.

[6]-The particulars of the charge were that:

On Wednesday the 23nd day of October 2019, at the Matamata Racecourse, having been required by an Investigator to supply a sample of urine in accordance with Rule 656(3) of the New Zealand Rules of Thoroughbred Racing, had urine which was found, upon analysis, to contain the controlled drugs Methamphetamine and Amphetamine as defined in the Misuse of Drugs Act 1975 and thereby committed a breach of the said Rule 656 (3) and is therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803 of the said Rules.

THE RELEVANT RULE

[7]-Rule 656 (3) provides:

A Rider, or any other Licence holder 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.

PENALTY PROVISIONS

[8]- Rule 803 (3) sets out the relevant penalty provisions. The following applies.

Subject to Rule 803 (2)(b), where any Licence holder 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 Licence holder 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

SUMMARY OF FACTS (salient points)

[9]-On Wednesday 23nd October 2019, officials from the Racing Integrity Unit (RIU) conducted routine drug testing at the Matamata Racecourse.

[10]-The Respondent was one of the people randomly selected for testing and was served the appropriate notice at 6.10am by a Racing Investigator. He provided the required urine sample at 7.48am and the sample gave an indicative positive test to Methamphetamine and Amphetamine.

[11]-The sample was given a unique number and forwarded to the ESR later that day by a Drug Detection Agency (TDDA) authorised agent of the RIU for confirmation analysis.

[12]-On the 31st October 2019, the RIU was advised, in writing, that the sample provided by the Respondent had, on analysis, been found to contain the controlled drugs Methamphetamine and Amphetamine.

[13]-A Stand Down Notice and a copy of the ESR Certificate in accordance with Rule 657(1) (a) was served on the Respondent on the 8th day of November 2019 as provided in Rule 911 (1) (e).

[14]-When spoken to the Respondent stated that he had a smoke of methamphetamine with friends 5 days and 3 days before being tested. He voluntarily stood himself down from any further riding on the 23rd October 2019 until the results of the ESR analysis were confirmed and the Stand-Down Notice served.

[15]-The Respondent is currently employed as a Stable Hand and is a licensed Class A Miscellaneous Trackwork Rider. He has been with his current employer for 6 months. He derives his income solely from the racing industry and earns $900 per week. He has not previously appeared on any Rule breaches.

Respondent’s Response

[16]-The Respondent said that he did not dispute any of the facts. He said he was an infrequent methamphetamine user and only did so on a social basis. He acknowledged his use of the drug 5 to 7 years ago was more frequent.

[17]-He said that he had an addictive nature but did not believe he had a problem with methamphetamine addiction.

[18]-He added that he had “let down” several people in the racing industry including his current employers Messrs O’Sullivan and Scott.

[19]-He further acknowledged that he has worked in a number of capacities for many prominent racing stables and was unaware of the sensitivities and possibilities associated with trace contamination.

PENALTY SUBMISSIONS – RIU (salient points)

[20]-The Respondent is 46 years old and has been involved in the racing industry all his adult life. He has previously been a licensed Trainer.

[21]-New Zealand Thoroughbred Racing has been drug testing industry participants since 1995 and since that time there has been a growing awareness that there is an absolute obligation on those riding horses to present themselves free of the influences of any drugs.

[22]-All riders are aware of the policy and the consequences should they not comply. The testing is conducted for two reasons, the need to maintain a healthy and safe workplace and secondly to maintain the integrity of the industry.

[23]-Historical penalties for breaches of the industry drug laws show some divergence dependent on the type of drug, the amount of the drug in the system and additional circumstances.

[24]-On this occasion the Respondent presented himself at the Matamata Racecourse to ride track work while the drugs Methamphetamine (Amphetamine) were within his body. Methamphetamine is a Class A controlled drug within the meaning of the Misuse of Drugs Act 1975.

Sentencing principles

[25]-The RIU submit four principles of sentencing - summarised as follows:

--Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be retributive in the sense 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 similar offences.

--A penalty should also reflect the disapproval of the JCA for the type of offending in question.

--The need to rehabilitate the offender should be taken into account.

[26]-The RIU submit that all four principles apply in this case.

Precedent cases:

[27]-In support of the penalty sought by the RIU the following four precedent decisions were submitted for the consideration of the Committee.

a.-RIU v Burton (2017) – In this case a licensed track rider tested positive to Methamphetamine. He was disqualified for 10 months and a further 3 months discount should he complete the Salvation Army Bridge Programme.

b.-RIU v Lange (2017) – In this case a licensed track rider tested positive to Methamphetamine. She was disqualified for 10 months and a further 3 months discount should she complete the Salvation Army Bridge Programme.

c.-RIU v Janson (2017) – In this case a licensed track rider tested positive to Methamphetamine. He was disqualified for 10 months and ordered to pay costs.

d.-RIU v Swinburne (2017) – In this case an unlicensed track rider tested positive to Methamphetamine and Cannabis (77ng/mL). He was sentenced to 10 months disqualification on the Methamphetamine charge and 3 months suspension on the Cannabis charge, to be served concurrently, in addition to the costs.

Consideration for rehabilitation

[28]-The RIU submitted that it should be noted that in past cases the sentencing principles have generally focussed around the first three principles and ignored principle four which refers to rehabilitating the offender. That in the precedent cases referred to two of the persons mentioned undertook rehabilitative measures or a treatment plan.

[29]- The RIU submitted that the Committee give due consideration to the initiative shown by the Respondent to rehabilitate himself and place some weight to that effect when considering penalty, and further the RIU would not oppose either a reduced penalty provided the Respondent completes The Salvation Army counselling programme, or suspending a portion of the penalty on the condition that the Respondent provides satisfactory confirmation of the successful completion of the Counselling program to the JCA.

Mitigating factors

[30]-The RIU submitted the following mitigating factors:

--That he has admitted the breach at the first opportunity.

--That he has been fully co-operative throughout the process.

--That he voluntarily stood himself down when he was aware of the positive result of the analysis of his sample.

--That he voluntarily enrolled in The Salvation Army counselling programme.

--That he has no previous charges before the Committee.

Aggravating factors

[31]-The RIU submitted the Respondent should be well aware that the use of Methamphetamine is prohibited under the Rules.

[32]-In conclusion the RIU sought a 10-month disqualification (back dated to the 23rd October 2019 when he voluntarily stood himself down) and a 3 months discount on completion of the Salvation Army Programme.

[33]-The RIU also seeks the cost of analysis of $187.50.

PENALTY SUBMISSIONS – RESPONDENT

[34]-In terms of any proposed penalty, the Respondent readily acknowledged that his offending would most likely result in a period of disqualification and he was prepared to accept that eventuality.

[35]-He submitted that having spent all of his adult working life involved in the racing industry it will be hard for him to find alternative employment and eventually he would like to return to employment within the industry. He said his current financial situation is such that future employment opportunities are his immediate priority, albeit he accepts they may be limited.

[36]-The Respondent reiterated that he did not believe he had a problem relating to drug addiction, but has confirmed his intention to participate in the Salvation Army counselling programme. He said that he has agreed to the proposed 8-week treatment plan on offer and is confident that it will be of some benefit to him.

[37]-In concluding his submission, the Respondent said that he regretted his failure to appreciate his offending could have led to contamination.

The Respondent’s Employer

[38]-Mr Scott advised the Committee that he attended the hearing in support of the Respondent ‘as a good employer’.

[39]-Mr Scott said that the Respondent was of good character and a highly valued employee who he assessed to be good at his job.

[40]-He added the Respondent was a very talented horseman who has made a serious mistake who he said “will need to own his problem”.

REASONS FOR DECISION

[41]-There is no recommended starting point for drug cases of this nature as they tend to be fact dependant. The precedent cases that were referred to the Committee provide some useful guidance to the extent they enable consistency and ensure we treat like circumstances broadly the same. But we are also mindful that, in determination of an appropriate penalty, we must carefully make an assessment of case specific factors such as culpability and the personal circumstances of the Respondent.

[42]-Methamphetamine is a Class A controlled drug. The issues associated with its use are well documented and it is said to be at the heart of many health, social and economic problems within communities across the whole of New Zealand.

[43]-The racing industry is a community in its own right and is not immune from the effects and consequences of this drug. Thankfully the detection of methamphetamine is a relatively rare occurrence within racing. But a concern is the emerging risk of cross contamination. An increasing number of positives have emerged. Trace level identifications of methamphetamine have been detected in tie up stalls on course and in other places that have traditionally been thought of as being environmentally sterile.

[44]-Accordingly, industry participants should not become complacent and vigilance is called for as there remains a highly probable risk of an unwary winner of an iconic race returning a positive. And even if this was to occur and the connections are found to be blameless, it could still have immeasurable consequences for public trust and confidence in the industry.

[45]-A further consideration is the potential for the risk of a serious workplace accident to occur, to horse(s) or rider(s) should any trackwork be undertaken by any rider who is operating under the influence of any prohibited substance, such as the Class A Drug methamphetamine.

[46]-Given this background and turning to our decision-making framework for assessing an appropriate penalty; deterrence, holding the Respondent to account and upholding public trust and confidence in the racing industry is at the forefront of our thinking.

[47]-The Committee has carefully considered and assessed the facts and submissions and to the extent they exist we have weighed up the factors that we have determined to be mitigating and aggravating.

[48]-The Respondent is 46 years old and has been involved in the racing industry all his adult working life. In his oral submissions he admitted that he smoked methamphetamine on two occasions within five days of being tested. He also acknowledged to the Committee that he has smoked methamphetamine occasionally on a social basis over the past five years; and prior to that his use was more frequent. In our assessment, this is therefore not a case of one-off drug use or experimentation of the drug methamphetamine.

[49]-To his credit, The Respondent has accepted responsibility for his offending and he advises that he is willing to engage in the Salvation Army Drug and Alcohol counselling programme.

[50]-The Respondent told the Committee that although he had an “addictive nature” he did not believe that he had a drug dependency problem. It was of some concern to the Committee that the Respondent, perhaps did not fully appreciate the gravity of his offending; and accept that he may have a drug use problem. On this the point he was given ample opportunity by the Committee to acknowledge that his use of methamphetamine is or could be a problem.

[51]-It was of further concern to the Committee that the Respondent as a track rider, stable hand or former trainer had no appreciation of his drug use having the potential to result in trace sample cross contamination. The possibility of a horse returning a positive test for methamphetamine was simply not on his radar.

[52]-We have factored in to our decision-making a number of precedent decisions. As we highlighted either in this decision, with appropriate allowances made for personal factors, the Committee is of the view that breaches of similar culpability should, as a general rule attract broadly similar penalties. In our view the most relevant decisions include:

--RIU v Waddell (2010) – 14 months disqualification

--RIU v Ihaka (2010) – 18 months disqualification

--RIU v Isherwood (2013) – 12 months disqualification

--RIU v Couchman (2015) – 12 months disqualification

--RIU v Burton (2017) – 10 months disqualification

--RIU v Lange (2017) - 10 months disqualification

--RIU v Janson (2017) - 10 months disqualification

[53]-In the cases referred to above Waddell and Isherwood were licensed jockeys, whereas the others were licensed track work riders. Collectively the decisions demonstrate the divergence of penalty for broadly similar offending. With regards to Burton and Lange, in addition to the 10-month disqualification, they were offered a 3-month suspension of the period of disqualification subject to the successful completion of a drug rehabilitation programme.

[54]-The Committee is firmly of the view that there is a strong need to censure the Respondent’s conduct and send a clear message to other industry participants that there is no place for illegal substances within the racing, particularly classified drugs such as methamphetamine and amphetamines. Accordingly, we are satisfied that disqualification is an appropriate penalty.

[55]-There are no factors that we consider would necessarily mitigate any proposed penalty, other than the Respondent’s admission of the breach and his desire to seek rehabilitation. We understand and have factored in the impact that any disqualification may have on the Respondent given that riding track-work and working as a stable hand are his primary sources of income.

[56]-We have noted the Informant’s submission that this breach could be dealt with by way of a 9-month disqualification. Taking all matters into account, including the seriousness of the breach; the Respondent’s culpability which we assess to be mid-to high range because he smoked methamphetamine, not once but twice within 5 days of being tested; and his personal circumstances we believe a 12-month disqualification is the more appropriate penalty.

[57]-Further in consideration of sentencing, Rule 812 provides that the Judicial Committee may:

(a) in addition to or in substitution of any penalty imposed under Rules 801, 803 and/or 804, require the person committing the breach to complete a counselling or rehabilitation course of the type specified by the Judicial Committee; and/or

(b) stay, in whole or in part, and for such period and upon such terms and conditions as it thinks fit, the operation of any penalty imposed for a breach of the Rules, provided that, in the event of any failure to comply with any of the terms and conditions of the stay, the Judicial Committee may order that the penalty or the remaining part of the penalty take effect

[58]-The Committee deems this to be an appropriate case for us to exercise our powers under this rule and require the Respondent to complete counselling as part of a rehabilitation programme.

[59]-Included in the pre-sentencing material provided to us was a Report from Ms Dianna Young (Registered AOD Clinician to the Racing Industry). She assessed the Respondent in terms of his suitability for rehabilitation. She has proposed an 8-week treatment plan to which the Respondent has agreed.

[60]-Accordingly, in addition to the 12-month period of disqualification, we also order that the Respondent participate in and complete the 8-week Salvation Army programme; and that:

a)-on the successful completion of that programme we suspend the period of disqualification by 3 months; and

b)-as a further condition, following the successful completion of the programme he is to, when directed by the RIU provide 3 clear urine samples for drug testing.

[61]-The RIU requested the Committee backdate any proposed disqualification to the date in which the Respondent was stood down (23 October 2019). We are unable to accommodate this request on the basis that Rule 1101 does not allow for this to occur.

[62]-For the sake of clarity Rule 1101 (1) provides:

Each disqualification imposed under these Rules will take effect immediately, unless the Tribunal imposing the disqualification specifies a later date on which the disqualification will take effect.

Penalty and Costs

[63]-In the result we impose the following penalties and make the following orders:

a)-Mr Donoghue is disqualified for 12 months commencing from 30 November 2019.

b)-We conditionally suspend 3 months of the disqualification if Mr Donoghue participates in and completes the Salvation Army drug and counselling rehabilitation programme. Further, upon successful completion and when directed by the RIU Mr Donoghue is to provide 3 clear urine samples for drug testing before being considered for relicensing.

Costs

c)-Mr Donoghue pays the cost of analysis, $187.50, to the RIU.

d)-Although this matter was heard on a raceday it was conducted in the nature of a non-race hearing, on that basis some JCA costs have been incurred. However, on this occasion the JCA have not sought costs.

Dated at Auckland this 30th day of November 2019.

Gavin Jones, Chairman

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